National Origin Harassment

Under the California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, it is unlawful to harass an employee or job applicant because of his or her national origin or ancestry. California Government Code section 12940(j). This means that it is unlawful to harass an employee or job applicant because they are from a particular nation or a particular part of the world, because of their ethnicity, accent, or customs, or because they appear to be from a particular ethnic background even if they are not actually from that ethnic background.

National origin is defined as "the country where a person was born, or, more broadly, the country from which his or her ancestors came." “[T]he terms ‘national origin’ and ‘ancestry’ [are] considered synonymous.” Espinoza v. Farah Mfg. Co. (1973) 414 U.S. 86, 88, 89.

The term "National Origin" also includes the birthplace of individuals, their family, or their ancestors, as well as the display of the physical, cultural, or linguistic characteristics of a particular nationality.

“Ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct:

(1) Has the purpose or effect of creating an intimidating, hostile or offensive working environment;

(2) Has the purpose or effect of unreasonably interfering with an individual's work performance; or

(3) Otherwise adversely affects an individual's employment opportunities.” 29 Code of Federal Regulations part 1606.1-8.

In order to be actionable, harassment based on ancestry or national origin does not necessarily have to be leveled at one's heritage from a particular country; general ethnic backgrounds such as "Hispanic" or "Latin American," also qualify. Moreover, unlawful discrimination based on ancestry or national origin must be based on the victim's objective appearance to others, not his subjective feelings about his own ethnicity. “Discrimination stems from a reliance on immaterial outward appearances that stereotype an individual with imagined, usually undesirable, characteristics thought to be common to members of the group that shares these superficial traits.” Bennun v. Rutgers State Univ (3rd Cir. 1991) 941 F.2d 154, 171-72. Thus, there is a significant amount of overlap between racial harassment and harassment premised on national origin or ancestry.

In order to bring a claim for harassment centered around one's national origin or ancestry, the employee needs to prove that the employee:

• Was a member of a protected class [e.g. a particular ethnicity or ancestry];
• Was subjected to unwelcome ethnic harassment;
• The harassment was based on a protected class [e.g. national origin or ancestry];
• The harassment unreasonably interfered with his or her work performance by creating an intimidating, hostile, or offensive work environment [or altered working conditions as to make it more difficult to do the job, see California Government Code section 12923(a)], and
• The [employer or entity] was liable for the harassment." Thompson v. City of Monrovia, (2010) 186 Cal.App.4th 860, 876 (discussing racial harassment).

Example: A kitchen manager subjected kitchen employees of Hispanic national origin to an intimidating, hostile, and offensive working environment. The kitchen manager and/or assistant managers heckled the Hispanic employees with comments such as "You Mexicans are ignorant," “Mexicans are lazy," "These Mexicans are stupid,” and Mexicans were ignorant and could not read or write. In addition, one of the employees was signaled out on the basis of her having particularly dark skin, her harassers calling her a “burro,” a "negra," and "the chocolate one." After she filed a discrimination charge with EEOC, she was fired. The EEOC then filed suit in the United States District Court for the Southern District of Florida, Miami Division. The employer ultimately settled with the EEOC for monetary relief. The employer was also required to implement an anti-discrimination policy. EEOC, et al. v. Stanley Glaser d/b/a Glaser Organic Farms, No. 1:15-cv-23642 (S.D. Fla.).

Example: Mr. Clark worked as a rathole hand/laborer, a strenuous position entailing drilling holes in the ground, installing steel pipes and encasing them in cement in preparation for drilling for oil. Clark also worked as a driver and equipment operator as well as a welder. Clark, who was Filipino, was harassed by his white manager. The manager called Clark a "non-white m-----f----r," a "monkey, " an "ape," and several other extremely offensive and openly discriminatory names. On one occasion, the manager repeatedly shoved his finger into Clark’s stomach and chest while calling him by a racial epithet. On another occasion, the manager urinated on Clark's legs as he worked under a digger machine in the shop. Clark was passed up for promotion in favor of newer, white employees in violation of company policy. The harassment was witnessed by a supervisor, but the supervisor took no action. Clark eventually reported the harassment and discrimination to the company’s safety manger. The company then retaliated against Clark by terminating Clark’s employment the very next day. The Equal Employment Opportunity Commission (EEOC) filed suit in United States District Court for the District of North Dakota (EEOC v. American Casing & Equipment, Inc.; Civil Action No. 4:15-cv-00066-CSM). The parties ultimately entered into a consent decree whereby American Casing & Equipment, Inc. agreed to pay Clark $250,000 and present to him a letter specifically apologizing for the harassment and discrimination. The defendant also agreed to train its managers, supervisors and employees on federal law prohibiting race and national origin discrimination.

Other examples of possible claims of discrimination or harassment that may lead to wrongful termination based on national origin or ancestry could include non-verbal or non-physical slurs. For instance, fellow employees intentionally speaking quickly and bewildering an employee new to the English language such that it distressed the employee and created a hostile work environment may be enough to suggest that these fellow employees were harassing the employee. Each situation is going to be heavily determined by the facts and nature of the harassment.

In fact, harassment due to an employee's national origin is normally a separate cause of action from national origin discrimination. However, harassment is additionally actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, (2001) 532 U.S. 268, 270. Thus, pervasive harassment about one's ancestry or national origin may constitute two separate claims, depending on the situation.

The Equal Employment Opportunity Commission (EEOC) guidelines suggest that those who merely associate with or are married to other nationalities or people from other nationalities would also be protected from discrimination. This may also apply to harassment.

If you have been harassed at your workplace based on your national origin or ancestry, or if you have been harassed at your workplace because of what your supervisor or coworkers perceive as your national origin or ancestry, contact the lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.