National Origin Discrimination Claims on the Rise!

Employment claims of discrimination based upon national origin have risen over 65% since 1997, according to the EEOC. This statistic becomes even more striking when one considers that discrimination claims in general rose only 20% in the past ten years. Recent EEOC decisions present the ongoing trap for the unwary – if an employee or job applicant is treated less favorably because of language, accent or ethnic background, the employee may have a claim for national origin discrimination.

In California, the workforce is extremely diverse – according to the U.S. Census, 39% of people in California speak a language other than English at home. Even going back to 2002, 28% of California residents then were foreign born. That number has increased to date. So what does that mean for California employers? Last September the EEOC accused supervisors at an Oxnard flower wholesaler of harassment laced with national-origin bias, including such remarks as Mexican women didn’t “know their place.” (EEOC v. Cyma Orchids, Inc., No. 10-7122 (C.D. Cal. complaint filed Sept. 23, 2010).) Use of such language should be clearly off limits – training and supervision of managerial staff is key to curtailing this discriminatory conduct and creating an environment where such language would not be tolerated.

Additionally, English-only policies are also a potential source of discrimination claims based on national origin. Federal and state laws permit employers to adopt workplace language restrictions if it can be justified as a “business necessity” that promotes safety or customer relations. (See 29 C.F.R. § 1606.7 (b); Cal. Gov. Code § 12951.) However, employers can’t selectively enforce such policies without risking potential liability. Recent EEOC cases illustrate the risk of disparate treatment; in 2009 a Torrance hospital paid $450,000 to a class of workers who claimed that an English-only policy was enforced only against Spanish speakers (EEOC v. Royalwood Care Center LLC, No. 05-6795 (C.D. Cal. consent decree filed Apr. 13, 2009)). The EEOC also sued a Central Valley medical center in 2010 claiming its language policy was unfairly enforced because Filipino hospital workers claimed that they were reprimanded for speaking in Tagalog while coworkers chatted freely in Spanish or Hindi (EEOC v. Central California Found. for Health d/b/a Delano Reg’l Medical Ctr., No. 10-1492 (E.D. Cal. complaint filed Aug. 18, 2010)).

The reminder to the attentive employer is this – ensure that if you have an English-only policy, it is based on a business necessity. Remind and reinforce with your managers and supervisors not to reference national origin in taking adverse employment actions, or to permit disparaging national origin based remarks flow unchecked in the workplace.