California’s Fair Employment and Housing Act (FEHA)[i] protects employees from discrimination, harassment or retaliation on the basis of any protected classification; those that are familiar such as race, religion, sex and age, and those employers may not be so familiar with such as marital status, ancestry and national origin. Title VII of the Civil Rights Act of 1964 (Title VII)[ii] – enforced by the Equal Employment Opportunity Commission – also prohibits discrimination based on protected classifications.
This article focuses on best practices for avoiding claims that relate specifically to national origin.
Types of Claims:
Common claims under state and federal laws relating to national origin tend to focus on harassing or retaliatory conduct. Typical allegations of harassing conduct include the use of epithets, derogatory comments, slurs, threats of deportation, mockery of an accent, a language or its speakers. Retaliatory conduct can take the form of threats about the applicant or employee’s immigration status including contacting immigration authorities.
Discrimination based on national origin can take many forms and include actions like those outlined above supporting claims of harassment or retaliation. Citizenship requirements or employer actions tied to immigration status – unrelated to an employer’s duty to comply with federal immigration laws –language and accent focused policies/practices can all run afoul of FEHA and Title VII’s national origin protections against discrimination.
The scenarios outlined above (e.g., derogatory comments, slurs and the like) can evidence discriminatory, harassing or retaliatory conduct. Other types of risk inducing conduct include requiring an individual to present a driver’s license unless doing so is permitted/required by law. Adopting or enforcing policies that limit or prohibit the speaking of any language in the workplace unless the restriction is narrowly tailored and justified by business necessity.[iii] Rejecting an applicant because the individual’s first language is not English or because of a belief that the person is not qualified to engage with customers/vendors over the phone for the same reason. And doing so without first determining that the language skills actually interfere with the person’s ability to perform the job.
While no single approach will work for every workplace, the following suggestions may help reduce the risk of allegations of wrongful conduct based on an individual’s national origin:
- Enforcing company-wide policies against harassment, discrimination or retaliation based on any protected classification – including national origin – is the employer’s best line of defense against national origin-based allegations of wrongful conduct.
- Cultivate a workplace environment that shows zero tolerance for those who engage in unlawful conduct: no matter their spot on the company’s organizational chart. Accountability is one of the most effective ways to engender trust among workers.
- Never forget that an employee’s immigration status has no impact on protections afforded by the FEHA.[iv]
- Always rely on multiple recruiting sources. Recruiting from multiple sources increases diversity among applicants and can help to avoid inadvertently excluding some national origin groups.
- Develop and enforce objective, job-related criteria for identifying and addressing unsatisfactory performance or conduct that can result in discipline, demotion or termination. Remember to provide support to managers and supervisory personnel tasked with addressing difficult performance-related issues.
Employers may find the following resources helpful in preventing discrimination, harassment or retaliation based on protected classifications including national origin: California Department of Fair Employment and Housing’s Resources for Employers; EEOC Enforcement Guidance on National Origin Discrimination.
Members with questions about reducing the risk of claims associated with protected classifications should contact Western Growers.
[i] Employers subject to the FEHA are those with 5 or more employees (one or more if harassment is alleged).
[ii] Employers with 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year are subject to Title VII’s prohibitions.
[iii] These types of “English-only” rules are always unlawful during nonwork time (e.g., meal and rest breaks). The narrowly tailored and business necessity aspects of such limits cannot be overstated.
[iv] Similar protections are afforded by federal law under the Immigration and Nationality Act which prohibits discrimination (retaliation or intimidate) based on citizenship, national origin, or unfair documentary practices (i.e., I-9 and E-Verify).