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Rand L. Stephens & Richard Koss

National Origin Discrimination: Facts & Myths

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National origin discrimination concerns unfair and discriminatory treatment targeted at certain workers because they are from a particular country or part of the world, or because of their ethnicity, accent, or ethnic background. The contours of the protections against national origin discrimination in the workplace can be somewhat unclear. Below, we address and debunk some of the common misconceptions regarding national origin discrimination law in California. Reach out to an experienced California workplace race and national origin discrimination lawyer if you have any questions or for help with an employment-related matter.

Myth: Only a Worker From the Country or Region Being Discriminated Against Can File a Claim

There is a widespread myth among employers and workers alike that only someone who identifies with a particular group, characteristic, or national origin has the right to file a lawsuit or a complaint with government agencies based on discrimination or harassment targeting that group. This is untrue.

First of all, any worker who identifies any form of harassment or discrimination against any protected group can raise the issue with the employer and, if nothing is done, file a complaint with the federal EEOC or California DFEH. The agency can conduct an investigation concerning alleged discrimination or harassment regardless of who brought the complaint, much like a whistleblower complaint.

Secondly, if a given worker is harassed or targeted based on their perceived national origin, but the persons engaging in the discriminatory conduct are wrong, that worker still has a legal claim based on discrimination. The law does not assume that perpetrators of discrimination have an educated knowledge of the cultures against which they are discriminating. A worker who is targeted, harassed, or subjected to a hostile work environment may have a claim for national origin discrimination regardless of whether they are actually of the national origin their harassers believe them to be.

Myth: A Person Cannot Discriminate Against Someone of the Same National Origin

There’s another major myth that only Caucasian workers can commit national origin discrimination, or at least that a worker cannot be discriminated against by someone from the same national origin. This is false. A supervisor of a given national origin who refuses to hire or promote people of their own national origin is still committing actionable workplace discrimination, regardless of their own national origin. Harassing conduct targeting someone of the same national origin may still qualify as actionable harassment. The legal test asks what actions were taken and what words were said, not about the nature of the parties committing discriminatory conduct.

Myth: A Nickname Is Not Discrimination

Coworkers and supervisors sometimes elect to give another employee a more “easy to pronounce” or “American-sounding” nickname. Employers and supervisors might view such conduct as harmless fun. In reality, giving someone an anglicized nickname can be evidence of national origin or race-based discrimination, as it inherently belittles the employee’s national origin and personal identity. A worker may, justifiably, feel harassed or discriminated against, especially if a supervisor refuses to use their proper name.

Myth: Conducting an Internal Investigation Renders an Employer Immune from Liability

Some employers believe that conducting any sort of internal investigation following complaints regarding national origin discrimination fully insulates them from liability. Aggrieved employees may believe that they have no further recourse once an internal investigation has been conducted. This is a misconception.

Conducting a thorough internal investigation and taking appropriate action against perpetrators can help shield an employer from liability. However, not all internal investigations are created equal. If an employer conducts only a cursory investigation and simply clears themselves of wrongdoing, an employee may absolutely still have a claim for discrimination, hostile work environment, or other worker rights issues. Employees who believe that the investigation and response by the employer were inadequate, or that the employer did not actually remedy the discrimination experienced by the employee to date, should consult with an employee rights attorney about whether they may still have a legal claim.

Myth: Requiring English-Only Workplaces is Not Discriminatory

In California, employers may require employees to speak only in English so long as they can demonstrate that speaking other languages in the workplace would disrupt the efficient operation of the business and no alternative practice will accomplish the business purpose equally well with less discriminatory impact. If sticking solely to English is not a business necessity, however (such as if employees wish to converse in a different language in the breakroom), then requiring an English-only workplace might be grounds for a discrimination claim.

If you are a San Francisco employee or employer in need of advice or representation concerning workplace discrimination, equal pay violations, wrongful termination, whistleblower protections, or other California labor law issues, contact the Bay Area employment law attorneys Richard Koss and Rand L. Stephens at 650-722-7046 on the San Francisco Peninsula, or 925-757-1700 in the East Bay.

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