Originally Published on August 7, 2018; Updated/Revised on July 3, 2019
Under California law, it is unlawful for an employer to discriminate against a job applicant or employee based on the applicant’s or employee’s national origin. The relevant California laws were amended on July 1, 2018, further enhancing the protections afforded to applicants and employees who are victims of national origin discrimination.
Below are some of the highlights of the current version of California’s national origin discrimination laws:
What is the definition of a person’s “national origin” under California law? In the context of national origin discrimination, the definition of a person’s “national origin” is very broad. “National origin” includes, but is not limited to, the individual’s actual or perceived: (a) physical, cultural, or linguistic characteristics associated with a national origin group; (b) marriage to or association with persons of a national origin group; (c) tribal affiliation; (d) membership in or association with an organization identified with or seeking to promote the interests of a national origin group; (e) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and (f) name that is associated with a national origin group.
The above definition means that, for instance, an employer may not discriminate against an applicant or employee because of the fact that the applicant’s or employee’s spouse is from Pakistan or because of the fact that the applicant or employee attends a mosque.
Additionally, as the definition of “national origin” provides, not only is an employer prohibited from discriminating against an applicant’s or employee’s actual national origin, but an employer is also prohibited from discriminating against an applicant’s or employee’s perceived national origin as well. This means that if an employer discriminates an employee because it believes that the employee is Canadian (but the employee is actually not Canadian), the employee may still have a national origin discrimination claim against the employer.
English-Only Rule. If an employer requires that only English be spoken in the workplace, such an English-only rule is deemed presumptively illegal under California law – unless the employer can demonstrate that (a) the English-only rule is justified by business necessity; (b) the English-only rule is narrowly tailored; and (c) the employer has effectively notified its employees about how and when the English-only rule applies and the consequences of violating the rule.
In turn, an English-only rule is justified by “business necessity” only if (a) the English-only rule is necessary to the safe and efficient operation of the business; (b) the English-only rule effectively fulfills the business purpose it is supposed to serve; and (c) there is no equally effective, but less discriminatory, alternative.
Moreover, it is never lawful for an employer to enforce an “English-only” rule during an employee’s meal or rest period.
English Proficiency. It is unlawful for an employer to discriminate against an applicant or employee based on his/her English proficiency – unless the English proficiency requirement at issue is justified by business necessity (i.e., the level of proficiency required by the employer is necessary to effectively fulfill the job duties of the position).
Accents. It is unlawful for an employer to discriminate against an applicant or employee based on his/her accent – unless the employer proves that the accent materially interferes with the applicant’s or employee’s ability to perform his/her job.
Harassment. It is unlawful for an employer to harass an applicant or employee on the basis of national origin. The use of epithets, derogatory comments, slurs, or non-verbal conduct based on national origin may constitute harassment if the actions are severe or pervasive such that they alter the conditions of the employee’s employment and create an abusive working environment. A single unwelcome act of harassment may be sufficiently severe so as to create an unlawful hostile work environment.
Retaliation. It is unlawful for an employer to retaliate against any individual because the individual has, among other things, opposed discrimination or harassment on the basis of national origin. Retaliation includes, but is not limited to, threatening to contact or contacting immigration authorities or a law enforcement agency about the immigration status of the employee, former employee, or applicant, or about the immigration status of a family member of the employee, former employee, or applicant.
If you believe that you have been subjected to national origin discrimination at work, call 916-612-0326 or email ([email protected]) Finley Employment Law today. We serve clients throughout California, including Sacramento, Folsom, Roseville, Granite Bay, and Elk Grove.
The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.