National Origin Termination

Under California’s chief law that prohibits discrimination in the workplace, the Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, 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. California Government Code section 12940(a). Thus, it is unlawful for an employer to terminate the employment of an employee solely because of his or her national origin. This protection extends to all employees in California. Additionally, Title VII of the Civil Rights Act of 1964 (Title VII), 42 United States Code section 2000e, et seq., generally provides protections similar to FEHA’s protections for workers throughout the United States and any territory or possession of the United States, including Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands. Whether an individual, or his or her ancestors, is from the Philippines, Uganda, or the United Arab Emirates (or a former nation such as Yugoslavia), or belongs to an ethnic group such as Arab or Hispanic, he or she is entitled to be free from discrimination on the basis of national origin in today’s increasingly ethnically diverse workplace.

Under FEHA, “National origin” includes, but is not limited to, the individual's or ancestors' actual or perceived:

• physical, cultural, or linguistic characteristics associated with a national origin group;
• marriage to or association with persons of a national origin group or having a child with someone of a different national origin or ethnic group;
• Native American tribal affiliation;
• membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
• attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a certain national origin group;
• citizenship status, if it has the purpose or effect of discriminating based on national origin, and
• name that is associated with a national origin group.

See California Code of Regulations, title 2, section 11027.1.

In addition, Equal Employment Opportunity Commission guidelines suggest that those who merely associate with other nationalities or people from other nationalities are protected from discrimination.

The California Department of Fair Employment and Housing (DFEH) maintains the authority to investigate complaints of discrimination in the workplace based on race, religion (religious creed), sexual orientation, sex or gender, and other protected personal characters including national origin.

In order to be actionable, the wrongful termination based on ancestry or national origin does not necessarily have to be leveled towards a heritage from a particular country; general ethnic backgrounds such as "Hispanic" or "Latin American" “Middle Eastern” or “Arab” also qualify. See Bennun v. Rutgers State University (3rd Cir. 1991) 941 F.2d 154, 171-72.

There is a significant amount of overlap between wrongful termination due to race, religious creed, sex or gender, and wrongful termination premised on national origin or ancestry. Discrimination motivated by stereotypes about two or more protected characteristics is sometimes referred to as intersectional discrimination.

For example, fueled in part by news of world events such as the shootings in San Bernardino and France and the hijackings in 2001, a new supervisor subjects a worker from Jordan to derogatory comments about his “Arab” or “Middle Eastern” ethnicity and repeatedly engages him in conversations about terrorism. In addition, his supervisor assails him with derogatory comments about the religion he practices, Islam, and the religious attire he sometimes wears. His employer then terminates his employment, citing poor work habits and interpersonal skills, even though the employee believes he is good at his job and he never received negative feedback concerning his work performance until he was assigned a new supervisor. In this situation, the employee may have a claim for wrongful termination based on national origin, race, and religious creed discrimination.

There have also been situations where an employer singles out specific subgroups of individuals for discrimination, such as discriminating against Hispanic women who were chiefly or entirely from Mexico for allegedly being slower or less industrious than their male or non-Hispanic counterparts.

In EEOC v. Hamilton Growers, Inc., the agricultural employer was alleged to have fired most of its American workers, who were African-American, based on their race and national origin, in favor of retaining H-2A guest workers from Mexico. The terminations were coupled with race-based comments by a manager. Additionally, the lawsuit alleged the employer provided lesser job opportunities to American workers by assigning them to pick vegetables in fields already picked by foreign workers, which resulted in the Americans earning less pay than their Mexican counterparts.

In order to bring a claim under the FEHA for wrongful termination based on bias against one's national origin or ancestry, the plaintiff needs to prove that:

• She was an employee of the employer,
• The employer employed five or more employees,
• She belongs to a particular national origin or ancestry group,
• That her job performance was satisfactory,
• that her employment was terminated
• that 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. (Ex: others not of the same national origin or ancestry retained similar jobs, and the employee who is bringing the claim lost 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, and
• that the plaintiff was harmed either monetarily or otherwise by the wrongful termination.

A plaintiff is more likely to prevail if the employer’s policies regarding discipline and termination do not explicitly prohibit national origin discrimination. Because terminations tend to require some exercise of discretion, a plaintiff is also more likely to prevail if the decision maker was inexperienced and did not consult with other managers before terminating the employee.

Examples of possible claims of discrimination that may lead to wrongful termination based on national origin or ancestry, include:

• Across the board or blanket English only policies at work,
  • An employer requiring employees to speak English while at the workplace was discriminating against non-English speakers and was essentially prohibiting them from speaking on the job whatsoever. Garcia v. Spun Steak Company (9th Cir. 1993) 998 F.2d 1480, 1488.
  • However, rules against the use of foreign languages at the workplace may be upheld if there is a legitimate business necessity for the restriction and the employees have notice, and the policy does not prohibit workers from speaking foreign languages during breaktimes. See California Government Code section 12951(a).
• discrimination based on a person's accent in situations where it is perceived to reflect on the place outside of the United States where an individual comes from.
  • Raad v. Fairbanks North Star Borough School District (9th Cir. 2003) 323 F.3d 1185, 1195.
• dress codes at work that discriminate against a person's ethnic dress.

If you have been terminated from your workplace based on your national origin, ancestry, or others' perception of either, or if you believe your employer or ex-employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.