Race Termination

The California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996: It is unlawful for an employer or prospective employer with five or more employees 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 race or color. California Government Code section 12940(a). Therefore, it is unlawful to terminate an employee’s employment because of his or her race or skin color.

FEHA’s protections against race discrimination, including discrimination that results in the termination of employment, are broad. For instance, FEHA also prohibits discrimination by an employer or prospective employer against an employee or job applicant because of his or her “association with persons of a particular color or ethnic group identification.” California Code of Regulations, title 2, section 11162(a). For example, this would apply if an employee was fired because during meal breaks she regularly sat with coworkers belonging to another perceived ethnic group as opposed to workers of her own perceived ethnic group.

In addition, FEHA prohibits discrimination by an employer or prospective employer against an employee or job applicant because of his or her “membership in an organization identified with, or seeking to promote the interests of persons of a specific color or ethnic group identification or because a person's name, or that of his or her spouse, is believed to reflect a given color or ethnic group identification.” California Code of Regulations, title 2, section 11162(b). “Color or ethnic group identification” is broadly defined to include “the possession of the racial, cultural or linguistic characteristics common to a racial, cultural or ethnic group or the country or ethnic group from which a person or his or her forebears originated.” California Code of Regulations, title 2, section 11161. Broadly, FEHA is meant to prohibit employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of workers from certain racial groups.

Race discrimination also includes discrimination based on personal characteristics associated with race, such as hair texture, and certain facial and anatomical features. In recent years, California has taken additional steps to combat race discrimination and wrongful termination based on race. Prompted in part by rallying cries such as Don’t Touch My Hair or fire me for it either, California enacted the Respectful and Open Workplace for Natural hair or “Crown” Act. California Government Code section 12926. The Crown Act bans discrimination in the workplace based on natural hair including Afros and protective hairstyles based on natural hair such as cornrows, dreads, and Bantu knots, pushing back against the perception by some that such hairstyles do not belong in the workplace as they raise negative connotations of being “unprofessional” or “dirty” or “ethic.” In reality, hair is just hair. Hair has no bearing on how well one performs in the workplace.

Individuals may be able to successfully pursue “reverse discrimination” cases in some instances. Note that some courts in reverse discrimination cases have required the plaintiff to establish that the defendant is an unusual employer who discriminates against the majority. Mills v. Health Care Service Corporation (7th Cir. 1999) 171 F.3d 450, 457.

Under federal law, employers with 15 or more employees (whether the employer meets this threshold is determined based on the number of employees on payroll) are forbidden from discriminating on the basis of race or color concerning any aspect of employment, including hiring, firing, pay, job assignments, promotions, fringe benefits, and any other term or condition of employment. Title VII of the Civil Rights Act of 1964 (Title VII), 42 United States Code section 2000e, et seq. Title VII generally provides protections similar but not identical to protections available under FEHA. A person usually has the choice whether to file a lawsuit for race discrimination leading to termination in federal court under Title VII or in California State court under FEHA. However, most Californians choose to sue in state court under FEHA, as FEHA provides for a broader range of damages than those available under Title VII. An additional advantage of filing in state court under FEHA is that, unlike in federal court, the plaintiff does not face the additional challenge of having to win a unanimous jury verdict.

Although claims of wrongful termination based solely on one's skin color are sparse, such discrimination based solely on the color of one's skin is indeed prohibited by FEHA and Title VII. Walker v. Secretary of Treasury, I.R.S. (N.D. GA 1989) 713 F.Supp. 403, 405. Thus, FEHA and similar federal statutes protect employees from termination due to skin color in addition to protecting them from terminations motivated by race. In addition, FEHA and Title VII protect not only minorities, but members of all races. Griggs v. Duke Power Company (1971) 401 U.S. 424, 430-31. FEHA’s protections also apply to discrimination based on colorism, a term believed to have first been coined by Pulitzer Prize winner Alice Walker and which she defined as “prejudicial or preferential treatment of same-race people based solely on their color.”

An employee does not need to be aware of precisely why the defendant is terminating the plaintiff, "whether it was his accent, his skin color, his ancestry or his nationality." If a plaintiff's claims that he/she was terminated because of his or her "membership in a group which is perceived" as different "when measured against other employees at his workplace, and which is not based on his birthplace alone," it is enough for the plaintiff to have a claim for wrongful termination due to race under FEHA. Sandhu v. Lockheed Missiles and Space Company (1994) 26 Cal.App.4th 846, 857.

An employer's animus towards an employee's national origin or ancestry may be the basis for racially charged termination, even though national origin and ancestry are separately protected classes under FEHA. California Government Code section §12940(a). For example: the fact that a plaintiff is East Indian, which is normally considered Caucasian, does not preclude the plaintiff from bringing an employment discrimination claim. Sandhu v. Lockheed Missiles and Space Company (1994) 26 Cal.App.4th 846, 858.

The protection given to employees extends to employees who are associated with members of a protected class. For example, in Watson v. Nationwide Insurance Company (1987) 823 F.2d 360, 361-362, the plaintiff, who was white, brought a claim for discrimination based on the fact that she was given differential (unfavorable) treatment by her employer because she married a black man.

To bring a claim for wrongful termination due to racial bias, an employee needs to prove that the employee:

• belongs to a particular race,
• that the employee's job performance was satisfactory,
• that the employee was terminated
• and that other employees not of the same race were not subjected to the discriminatory actions of the employer. (Ex: others not of the same race retained similar jobs and the employee who is bringing the claim lost his/her position to an individual of similar qualifications to the employee but not of the same race). See Los Angeles County Office of the District Attorney v. Civil Service Commission of the County of Los Angeles (1997) 55 Cal.App.4th 187, 201.

An employee's resignation may give rise to a wrongful termination cause of action if the circumstances amounted to a constructive termination. A constructive termination occurs in situations where a reasonable person would feel compelled to resign from his or her employment because the employer intentionally caused objectively intolerable working conditions or knowingly allowed them to exist.

If you have experienced discrimination at your workplace based on your race, color, national origin, or ancestry, or if you believe your employer has otherwise violated you rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.