Under the California Fair Employment and Housing Act ("FEHA"), it is unlawful for an employer to refuse to hire, to discharge or to terminate, to refuse to select or to bar or discharge an employee from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the employee's national origin or ancestry. Cal. Gov. Code § 12940(a).
National origin is defined as "the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). An employee’s "national origin" also includes the birthplace of the employee or their ancestors, as well as displays of the physical, cultural, or linguistic characteristics of a particular nationality. 29 Code Fed. Reg. §§1606.1-8.
An employer’s animus toward an employee’s national origin does not need to be targeted toward a heritage from a particular country because animus toward general ethnic backgrounds such as "Hispanic" or "Latin American" also qualify as a basis for national origin discrimination. Bennun v. Rutgers State Univ., 941 F. 2d 154, 171-72 (3rd Cir. 1991). In this way, there is substantive overlap between wrongful termination based on race and wrongful termination based on national origin or ancestry.
Employee Needs To Prove
- The employee belongs to a particular national origin or ancestry.
- The employee's job performance was satisfactory, or that the employee was qualified for the job which they were not hired for.
- The employee was terminated.
- Other employees not in the protected class (i.e., who did not share the national origin or ancestry in question) were not subjected to termination by the employer. (example: others not of the same national origin or ancestry retained similar jobs, and the employee who is bringing the claim lost his or her position to an individual with similar qualifications to the discharged employee but who was not of the same national origin or ancestry). See Perez v. County of Santa Clara, 111 Cal. App. 4th 671, 675-676 (2003).
- English-Only Policies at Work: An employer requiring employees to speak English while at the workplace was discriminatory against non-English speakers and prohibited non-English speakers from speaking on the job whatsoever. Garcia v. Spun Steak Co., 998 F. 2d 1480, 1488 (9th Cir. 1993). It is worth noting that rules against the use of foreign languages at the workplace may be upheld if the employer has a legitimate business necessity for such rules and the employees have notice. Cal. Gov. Code §12951(a).
- Discrimination Based on a Person's Accent: Raad v. Fairbanks North Star Borough School Dist., 323 F. 3d 1185, 1195 (9th Cir. 2003) (finding genuine issue of material fact as to whether the employee’s Lebanese accent, which the employer noted as “a potential weakness in her candidacy,” was pretext for discrimination based on the employee’s national origin).
- Dress Codes at Work that Discriminate Against a Person’s Ethnic Dress
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If you believe your employer has treated you adversely, including wrongfully terminated you, discriminated against you, retaliated against you, or harassed you, you should Contact Sani Law today to schedule a free initial consultation.