National origin and ancestry harassment in the workplace is prohibited by California’s Fair Employment and Housing Act (“FEHA”).1 National origin harassment includes harassment of an employee because s/he:
- Is from a particular nation or part of the world,
- Has a particular accent,
- Is of a particular ethnicity associated with another country, or
- Appears to be from a particular part of the world (even if s/he actually is not).
Workplace harassment on the basis of national origin or ancestry falls into the “hostile work environment” category of nonsexual harassment–which is treated the same way as sexual harassment under California labor law.2
What is the legal definition of national origin workplace harassment?
The legal definition of national origin workplace harassment under the FEHA is:
- An employee experiences unwelcome conduct or comments (workplace bullying) at work;
- This harassment is based entirely or in part on his or her national origin or ancestry; and
- This harassment is either pervasive or severe enough to alter the conditions of employment and create a hostile work environment.3
“National origin or ancestry” can mean the fact that one was born in a country other than the U.S., or the fact that one’s ancestors were born in a particular country.
It can also mean one’s co-workers believe that one was born in a particular country–regardless of whether that belief is true.
For example, if coworkers repeatedly harass a colleague whose parents are from India by calling him a “terrorist” because they mistakenly think he is from a majority-Muslim country in the Middle East, that may qualify as national origin workplace harassment.
The “pervasive or severe” requirement is key to the definition of national origin workplace harassment. Isolated teasing or occasional bigoted/insensitive remarks do not rise to the level of workplace harassment.
Instead, the behavior must either
- Happen frequently or many times, or
- Be extremely abusive in nature–which usually means that it involves either serious humiliation or a threat to the victim’s physical safety.4
This definition of “hostile work environment” harassment applies to numerous other forms of workplace harassment as well, including sexual orientation harassment, disability harassment, religious harassment, racial harassment, and so forth.
Do employees have the right to sue their employer for national origin harassment by a non-supervisor?
National origin workplace harassment by non-supervisors is prohibited just as harassment by supervisors is.5
If an employee is harassed on the basis of national origin or ancestry by a supervisor, then the employer is liable for that harassment.
However, if the harassment is by someone other than a supervisor, then an employee can only successfully sue an employer (as opposed to the harasser) for workplace harassment on the basis of national origin or ancestry if the employer behaved negligently.6
Negligence with respect to workplace national origin harassment means that the employer needs to have known about the harassment and failed to take reasonable steps to prevent or stop the harassment.
What can an employer do to prevent national origin harassment in the workplace?
Anti-immigrant rhetoric has grown more common in our country recently. An increased possibility of national origin workplace harassment (as well as of hate crimes against immigrants) is a natural result of this.
Employers who would like to avoid liability in a harassment lawsuit–and who want to avoid the toxic effect on employee morale of national origin harassment–should be proactive about preventing harassment.
Our California harassment attorneys recommend the following five steps to prevent harassment on the basis of national origin, ancestry and other protected categories:
- Create a written policy against harassment;
- Communicate the anti-harassment policy to all employees;
- Train supervisors on the anti-harassment policy;
- Post the California Department of Fair Employment and Housing’s (DFEH’s) poster on harassment in a prominent place; and
- Distribute the DFEH brochure on harassment to all employees and supervisors
Call us for help…
For questions about national origin/ancestry workplace harassment under California’s Fair Employment and Housing Act, or to discuss your case confidentially with one of our California labor and employment 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.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California national origin harassment law]. (“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: . . . (j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, 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, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract.”)
- Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, 1058–59.
- Hughes v. Pair (2009) 46 Cal.4th 1035, 1042.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California national origin harassment law], endnote 1 above.
- Department of Health Services v. Superior Court (2001), 94 Cal. App. 4th 14.