Employment Discrimination in California Based on National Origin

It is against the law for an employer to discriminate against a person based on his or her national origin or perceived national origin. Employees who are discriminated against based on their national origin or place of birth can file a lawsuit against their employer for damages.

Below, our California employment discrimination lawyers discuss the following frequently asked questions about lawsuits for national origin discrimination against California workers:

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National origin discrimination in employment is treating an employee or job applicant negatively because they are from a certain country or appear to be from a certain ethnic background.

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. Can an employer in California refuse to hire someone because of where the applicant was born?

An employer in California cannot refuse to hire someone because of where the individual was born or based on the individual's ethnicity. Discrimination in employment based on national origin is a violation of California state and federal law.

Under the California Fair Employment and Housing Act (FEHA), it is illegal for an employer to discriminate against an individual based on national origin.1

Title VII of the Civil Rights Act of 1964 also protects applicants and employees from employment discrimination based on national origin.2

Employers are prohibited from hiring only U.S. citizens except where required by law, regulation, or government contract. An employer cannot refuse to hire an immigrant if the individual has lawful documentation that establishes his or her employment eligibility.

In limited situations, an employer can require an employee to speak fluent English if English fluency is necessary to perform the job effectively. However, an employer cannot have an “English-only” policy unless it is needed for the safe or efficient operation of the business and is not for discriminatory purposes.

2. What is national origin discrimination?

National origin discrimination in employment is treating an employee or job applicant negatively because they are from a certain country or appear to be from a certain ethnic background.

Under the FEHA, it is an unlawful employment practice for an employer to discriminate against a person because of his or her national origin in any aspect of employment. This includes:

  • Refusing to hire or employ
  • Refusing to select a person for a training program
  • Firing, bearing, or discharging an employee
  • Discriminating against a person in compensation or in terms, conditions, or privileges of employment.3

National origin is a broad term that refers to an individual's place of birth or ethnic heritage. This includes:

  • Ancestors
  • Physical, cultural, or linguistic characteristics associated with a national origin group
  • Marriage to or association with a national origin group
  • Tribal affiliation
  • Membership with an organization that promotes the interests of a national origin group
  • Participation in schools associated with a national origin group
  • Attendance in churches, mosques, temples, or religious institutions associated with a national origin group
  • Name associated with a national origin group4

Although the term “national origin” refers to nations or countries, national origin discrimination can also refer to geographical regions, ethnicities, or languages. In the United States, national origin discrimination can even refer to discrimination against Native Americans and tribal associations.

The laws against national origin discrimination are not limited to employers, they also apply to unions and labor organizations, which are prohibited from excluding, expelling, or restricting membership to a person based on national origin.5 National origin discrimination prohibitions also apply to apprenticeship training programs and employment agencies.67

National origin discrimination is a violation of California and federal workplace discrimination laws. National origin discrimination is prohibited in any aspect of employment or hiring. It is against California and federal law for an employer to do any of the following based on your national origin or place of birth:

  • Refuse to hire you
  • Refuse to select you for a training program
  • Demote you
  • Fire you
  • Pay you less
  • Reduce your salary
  • Deny equal pay
  • Deny a promotion
  • Deny reinstatement
  • Deny benefits
  • Force you to quit
  • Harass you
  • Assign different duties
  • Discriminate against you in any way

Place of Birth

National origin can refer to an individual's place of birth, regardless of citizenship, language, or ethnicity. Place of birth can determine citizenship; however, citizenship may be determined by a number of factors. For example, many U.S. citizens are born outside of the United States if they are born to a parent who is a U.S. citizen.

Individuals born in the United States (or one of its territories) are also U.S citizens by birth. However, some employers may treat these individuals negatively if they were born to non-citizens, or are part of another ethnicity, even if they were born in the United States.

Ethnic Background

Ethnic background generally refers to a group of people who have the same customs, religion, culture, or area of origin. This is compared to race, which generally refers to an individual's physical characteristics. For example, Hutu and Tutsi people in Rwanda may be from a similar racial background but they generally represent different ethnic groups. However, employers who discriminate against others often confuse race, ethnicity, and national origin.

Perceived National Origin

The laws against discrimination based on national origin also apply to a perceived national origin. It is not a defense to discrimination if the employer was wrong about the individual's national origin.

For example, an employer may refuse to give a job to a female applicant with a headscarf because the employer believes the applicant must be from the Middle East and the employer doesn't want to have anyone from the Middle East working in the company.

If the applicant turns out to be a U.S. citizen of German ancestry, the employer may still have violated the laws against employment discrimination based on the applicant's perceived national origin.

 

National Origin of Spouse, Family, or Associates

Employment discrimination can also affect individuals with a spouse from a different country or ethnicity. An employer cannot discriminate against an employee or applicant because of the employee or applicant's spouse's national origin, perceived or actual.

Similarly, an employer cannot discriminate against an employee who associates with people from a certain nation or ethnic group.

3. How do I know if I was discriminated against because of my national origin?

It is not always easy to tell if someone is being discriminated against in the workplace. Most workplace discrimination is subtle or never admitted to openly. Employers are generally aware that outward discrimination could expose the employer to a lawsuit. However, there may be signs of discrimination because of an employee's national origin.

Improper questions during an interview or application process may be a sign of potential national origin discrimination violations. This includes questions about an individual's:

  • Nationality
  • Lineage
  • Ancestry
  • Parents' ancestry
  • Applicant's spouse's ancestry
  • Background
  • Cultural heritage
  • Language ability, if not relevant to the job

Other signs of possible discrimination may be:

  • Sudden changes in job performance reviews
  • Exclusion from meetings and events
  • Change in work duties or workload increases
  • Reduced hours or reduced pay
  • Different rule enforcement involving workers of different backgrounds
  • Failing to put a stop to racism or ethnic jokes in the workplace
  • Making fun of an individual's accent or stereotypes about people from a certain country
  • Failing to consider applicants with ethnic-sounding names

In some cases, an employer may be of the same national origin as the employee or applicant. However, even if the employers is from the same national origin, they can still discriminate against someone of the same origin.

4. What should I do if other co-workers are harassing me about where I was born?

Co-workers, supervisors, and other employees may engage in workplace harassment based on an employee's perceived national origin. This includes:

  1. Experiencing unwelcome comments or conduct at work (workplace bullying);
  2. The harassment is based on the employee's national origin or ethnicity; and
  3. The harassment is pervasive or severe enough to alter the conditions of employment and create a hostile work environment.8

Isolated incidents of teasing, tasteless jokes, or insensitive remarks generally do not rise to the level of workplace harassment. Instead, the offending behavior must generally happen frequently or be extremely abusive in nature.

If an employee is being harassed based on national origin by co-workers, or someone other than a supervisor, then an employee may be able to sue the employer for workplace harassment if the employer behaved negligently. This generally means that the employer needs to have known about the harassment and failed to take reasonable steps to prevent or stop the harassment.

5. Should I file a workplace discrimination complaint with the EEOC?

National origin discrimination in the workplace is a violation of California state law and federal law. The Equal Employment Opportunity Commission (EEOC) enforces federal national origin and ethnic discrimination laws. The California Department of Fair Employment and Housing (DFEH) is the state agency that handles complaints of national origin discrimination.

In most cases, California law offers broader protections for anti-discrimination cases than federal law. For this reason, many people in California prefer to file a national origin discrimination complaint with the DFEH rather than the EEOC.

If an employee wants to file a lawsuit against his or her employer for national origin discrimination in California, the employee is usually required to exhaust all administrative remedies first. This may mean the employee has to go through the DFEH complaint process before they can file a lawsuit. However, your attorney may file a complaint with the DFEH and obtain an immediate right to sue notice without waiting for the administrative process first.9

Filing a Complaint with DFEH

You can file a national origin or ancestry discrimination complaint directly with the DFEH. In general, you must submit a pre-complaint inquiry within one year of the last incident of discrimination, harassment, or retaliation. However, there are exceptions to this time limit, such as where the individual did not learn about the unlawful practice until after the expiration of one year.10

The complaint can be filed online, by phone, or using the form from the DFEH website. The pre-complaint inquiry will initiate an intake interview with the DFEH and help determine whether a complaint can be accepted for investigation.

An investigator will contact the individual who filed the complaint within 60 days and discuss the details of the alleged discrimination or harassment. If the DFEH representative determines the state will not handle the complaint, the matter will be dismissed, and the individual has the immediate right to sue their employer in court. If the representative accepts the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to the employer. The complaint can also be dual-filed with the EEOC at this point.

After the employer responds to the complaint, the DFEH will review the answer. In many cases, the DFEH will offer dispute resolution services, which provide a way for the employee and employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the DFEH will initiate an investigation.

A national origin discrimination investigation will determine whether there was a violation of California law. If the investigation finds there was a violation, the case will go the DFEH Legal Division. If there is no violation, the case will be closed. If the case is closed, the employee still has the immediate right to take their case to court.

The DFEH Legal Division generally requires the parties to go through mediation. Mediation is a form of alternative dispute resolution where a neutral mediator helps the parties come together to find a mutually agreeable solution. In a successful mediation, the employer and employee will come up with a way to settle the dispute, without leaving it up to the courts to decide the outcome.

If the parties cannot settle the dispute through mediation, the DFEH could file a lawsuit on behalf of the employee against the employer. If the DFEH does not pursue the claim, it will close the investigation and the employee has the immediate right to file a lawsuit against the employer.

6. Can I sue my employer for national origin discrimination in California?

Under California law, it is a civil right to have the opportunity to seek and hold employment without discrimination based on national origin. Employees who are discriminated against because of their ancestry or national origin can file a lawsuit against their employers for unlawful discrimination.11

An employee generally has to file a complaint with the DFEH or EEOC before they can file a lawsuit in civil court. This requires obtaining a “right to sue” notice before your case can be taken to court.

You can request an immediate right to sue notice, without having to go through a complete DFEH or EEOC investigation. However, if you receive a Right-to-Sue notice, your complaint will not be investigated by DFEH. Alternatively, you may also wait until the DFEH dismisses your case or finds no violation before taking your case to court.12

According to the DFEH, proceeding directly to court without an investigation by the DFEH is only advisable if you have an attorney. Your attorney can obtain a right to sue notice and file your case in California Superior Court, in the county where the discrimination occurred, or other relevant county.13

The complaint will be served upon your employer and anyone else named in the lawsuit as defendants. The defendants will respond to the complaint with a formal answer responding to the allegations, and the case may proceed through litigation. At any point before the end of a trial, the employer and employee can negotiate a settlement and settle the case out of court.

7. What are my damages in an employment discrimination lawsuit in California?

The damages available in an employment discrimination lawsuit will depend on the type of discrimination involved and the extent of the harm to the employee or applicant. This may include money damages, punitive damages, and equitable remedies.

Money damages from national origin employment discrimination may include losses from:

  • Back pay (with interest)
  • Front pay
  • Higher income from a promotion
  • Higher income from a raise
  • Benefits
  • Pension benefits
  • Bonus payments
  • Pain and suffering
  • Emotional distress

A successful lawsuit can also result in equitable remedies. If an employee has been fired based on his or her national origin, the court can require the employer to rehire the employee. Other equitable remedies may include hiring or a promotion. However, when an employee has been harassed or discriminated against, the employee may not necessarily want to return to that hostile workplace.

Employees who have suffered employment discrimination or harassment based on national origin can also seek to have the employer reimburse their expenses for attorney's fees and court costs.14

In some cases, an employee may also eligible to receive punitive damages. Punitive damages are a way to punish the behavior of the wrongdoer and act as a way to deter the employer or other employers from engaging in similar wrongful behavior in the future.

8. Can my boss fire me for reporting discrimination against another employee?

California workers cannot be retaliated against for reporting workplace discrimination against a co-worker or other employee.15

The FEHA protects employees who are retaliated against for:

  • Opposing workplace harassment
  • Opposing national origin discrimination against other employees
  • Reporting national origin discrimination or workplace harassment
  • Assisting with DFEH investigations or government inquiries

If an employer retaliates against an employee for reporting FEHA violations or other employment law violations, the employee may be able to file a complaint with the DFEH or file a lawsuit against the employer for retaliation or wrongful termination.

9. Can I be fired for filing a workplace discrimination or harassment lawsuit?

An employer cannot fire an employee for filing a workplace discrimination or harassment lawsuit. Firing an employee for filing a workplace discrimination claim is a retaliatory action, and may be considered "wrongful termination".16 The employee may be able to file a lawsuit against the employer for wrongful termination.

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For questions about California national origin discrimination laws, retaliation, or to discuss your case confidentially with one of our skilled California employment law attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.


Legal References:

  1. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”)
  2. Title VII, 42 U.S.C. § 2000e-2, Section 703 -- Unlawful Employment Practices. (“(a) Employer practices. It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.”)
  3. Fair Employment and Housing Act 12940, footnote 1 above.
  4. California Code of Regulations 11027.1 -- Definitions. (“(a) “National origin” includes but is not limited to, the individual's or ancestors' actual or perceived: (1) physical, cultural or linguistic characteristics associated with a national origin group; (2) marriage to or association with persons of a national origin group; (3) tribal affiliation; (4) membership in or association with an organization identified with or seeking to promote the interests of a national origin group; (5) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and (6) name that is associated with a national origin group.”)
  5. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organization's staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.”)
  6. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.”)
  7. Fair Employment and Housing Act 12940 -- Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.”)
  8. Hughes v. Pair (2009) 46 Cal.4th 1035, 1042. (“To prevail on a hostile work environment claim under California's FEHA, an employee must show that the harassing conduct was “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees.”)
  9. Fair Employment and Housing Act 12960. (“(b) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or his or her authorized representative may in like manner, on his or her own motion, make, sign, and file a complaint.”)
  10. Fair Employment and Housing Act 12960. (“No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred, except that this period may be extended as follows: (1) For a period of time not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence. (2) For a period of time not to exceed one year following a rebutted presumption of the identity of the person's employer under Section 12928 , in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer. (3) For a period of time, not to exceed one year from the date the person aggrieved by an alleged violation of Section 51.7 of the Civil Code becomes aware of the identity of a person liable for the alleged violation, but in no case exceeding three years from the date of the alleged violation if during that period the aggrieved person is unaware of the identity of any person liable for the alleged violation. (4) For a period of time not to exceed one year from the date that a person allegedly aggrieved by an unlawful practice attains the age of majority.”)
  11. Fair Employment and Housing Act 12921. (“(a) The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status is hereby recognized as and declared to be a civil right.”)
  12. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”)
  13. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) ... The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office.”)
  14. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) ... In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees.”)
  15. Government Code 12940 GC -- Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions FEHA wrongful termination / retaliation. ("It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.")
  16. California Code of Regulations (CCR) tit. 2, § 11021. ("a) FEHA Retaliation Generally. It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment that the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Council or Department or its staff. (1) Opposition to practices prohibited by the Act includes, but is not limited to: (A) Seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (B) Assisting or advising any person in seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (C) Opposing employment practices that an individual reasonably believes to exist and believes to be a violation of the Act; (D) Participating in an activity that is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act.")

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