Race & National Origin Discrimination

1. Race & National Origin Discrimination Presented by: R. Sybil Villanueva, Associate Chief Counsel Department of Fair Employment & Housing March 16, 2011

2. Does Race & National Origin Discrimination Still Occur Today? • Yes.

3. 2010 Employment CasesPreliminary Data

4. 2009 Accusations Issued California Department of Fair Employment and Housing Calendar Year: 2009 Accusations Filed: by Bases (All Laws)

5. What is the Law? • The Fair Employment and Housing Act (FEHA) states: “It is an unlawful employment practice … for an employer, because of the race, color, national origin, … of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. (Gov. Code, § 12940(a).)

6. What is Race? • The FEHA and Title VII do not define race. • “Race” is interpreted broadly to mean classes of persons identifiable because of their ancestryorethnic characteristics.

7. What is Race? • Saint Francis College v. Al–Khazraji(1987) 481 U.S. 604, 613. • Professor of Arab ancestry denied tenure by Caucasian employer. • “… Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended … to forbid. . . . [A] distinctive physiognomy is not essential … If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case ….”

8. What is Race? • Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 857. • Employee of East Indian ancestry laid off by Caucasian employer. • “We conclude that Sandhu’s allegation that he was subject to a discriminatory animus based on his membership in a group which is perceived as distinct when measured against other Lockheed employees, and which is not based on his birthplace alone, is sufficient to make out a cognizable claim for racial discrimination under FEHA.”

9. Race v. Color • Race and Color may overlap but they are not the same. • Race refers to ancestry or ethnic characteristics. • Color refers to pigmentation of the skin. • Walker v. Secretary of Treasury, I.R.S. (N.D. Ga. 1989) 713 F.Supp. 403, 405 • Alleging color discrimination when a dark-skinned African American supervisor terminated a light-skinned African American employee.

10. What is National Origin? • The FEHA and Title VII do not define national origin. • “National origin” on its face means “the country where a person was born, or, more broadly, the country from which his or her ancestors came.” Espinoza v. Farah Mfg. Co., Inc. (1973) 414 U.S. 86, 88, 89, 94 S.Ct. 334, 337. • Discriminatory conduct based on a person’s birthplace, or on linguistic characteristics or surnames associated with a particular national origin group.

11. What is National Origin? • The person’s origin does not have to be a country. • Pejic v. Hughes Helicopters, Inc.(9th Cir. 1988) 840 F.2d 667, 673. • Discrimination against Serbians prohibited even before Serbia became independent nation • Janko v. Illinois State Highway Auth. (N.D. Ill. 1989) 704 F. Supp 1531, 1532. • Gypsies, a nomadic minority of Caucasians, are a national group. • Dawavendewa v. Salt River Project Agricultural Improvement & Power Dist.(9th Cir. 1998) 154 F.3d 1117, 1119. • Native American tribe as national origin.

12. National Origin v. Citizenship • National origin usually refers to a person’s birthplace. • Citizenship usually refers to the status of a person in relation to a country.

13. National Origin v. Citizenship • While employers may not discriminate on the basis of national origin or ancestry, it is not unlawful to discriminate on the basis of an applicant’s or employee’s citizenship. I.e., unlike race, sex, national origin, etc., citizenship is not a protected characteristic. • Espinoza v. Farah Mfg. Co., Inc. (1973) 414 U.S. 86, 88, 89, 94 S.Ct. 334, 337—applicant denied employment “not because of the country of her origin, but because she had not yet achieved United States citizenship.” • Mahdavi v. Fair Employment Practice Comm'n(1977) 67 Cal.App.3d 326, 341, 136 Cal.Rptr. 421, 428—no coverage under FEHA’s predecessor for discrimination claims based on alienage.

14. Race and National Origin Overlap • While Race and National Origin may overlap, they are not the same. • For example, a Mexican American might be discriminated against because of stereotypes about his or her Mexican culture and not because of his or her birthplace in Mexico.

15. Who May Claim Race &/or National Origin Discrimination? • All persons • “Reverse” discrimination. • “Associated with” • Family member. • Friends. • Groups organized for the protection or assertion of rights protected under the FEHA or Title VII. • Perceived or “Regarded as” • It does not matter whether the perception is wrong • Unlawful discrimination is based on the employee’s objective appearance to others rather than the employee’s subjective belief as to his or her national origin or ancestry. • Bennun v. Rutgers State Univ. (3rd Cir. 1991) 941 F.2d 154, 173—court found employee was discriminated against as a Hispanic, even though employee regarded himself as Sephardic Jew.

16. When Does Race Discrimination Usually Occur? • Overt statements. • Segregation of employees. • Discriminatory personnel decisions. • Discriminatory policies.

17. When Does Race Discrimination Usually Occur? • Grooming Standards • “It is lawful for an employer … to impose upon an employee physical appearance, grooming, or dress standards. However, if such a standard discriminates on [the basis of race] and if it also significantly burdens the individual in his or her employment, it is unlawful.” (Cal. Code Regs., tit. 2, § 7287.6, subd. (c).)

18. When Does National Origin Discrimination Usually Occur? • Overt statements. • Segregation of employees. • Discriminatory personnel decisions. • Discriminatory policies.

19. When Does National Origin Discrimination Usually Occur? • English Only Rules. • “An employer may have a rule requiring that employees speak only in English at certain times if the employer can show that the rule is justified by business necessity, and if the employer has effectivelynotified its employees of the circumstances and time when speaking only in English is required and of the consequences of violating the rule.” (Cal. Code Regs., tit. 2, § 7289.5, subd. (d).)

20. English Only Rules • What is “business necessity?” (Gov. Code, § 12951, subd. (b).) • There is a legitimate business purpose for the language restriction where it is necessary to the safe and efficient operation of the business; • The language restriction effectively fulfills the business purpose it is supposed to serve; AND • There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. • Examples: • Work involving a high risk of injury or accidents (e.g., during surgery, or at a laboratory, oil drilling site, mining or construction site); • Where necessary for communication with customers, coworkers and supervisors who speak only English.

21. When Does National Origin Discrimination Usually Occur? • Accent Discrimination • “Accent and national origin are obviously inextricably intertwined in many cases.” Fragante v. City and County of Honolulu (9th Cir. 1989) 888 F.2d 591, 596. • But, “adverse employment decisions may be predicated upon an individual’s accent, …if it interferes with the individual’s job performance.” Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003)323 F.3d 1185, 1195.

22. Accent • Examples • Accent of substitute teacher should not have been used to deny her a full time position where substitute teacher received recommendations written by her graduate school instructors, requests for her as a substitute by other teachers employed by the School District, and the School District continued to employ her as a substitute. Raad v. Fairbanks North Star Borough School Dist.(9th Cir. 2003) 323 F.3d 1185. • Accent of a supervisor of a dental laboratory did not interfere with his supervisory duties. Carino v. University of Oklahoma Bd. of Regents (10th Cir. 1984) 750 F.2d 815. • Accent of professor of Trinidadian descent resulted in bad evaluations from students and the Court found that requiring that a professor speak the native tongue in order to convey his ideas is not any form of discrimination, invidious or otherwise. Jiminez v. Mary Washington College (4th Cir.1995) 57 F.3d 369, 380.

23. How Can Employees Protect Themselves From Race &/or National Origin Discrimination? • Document everything. Keep a journal. Keep all documentation of the alleged discriminatory conduct. • Talk to other employees. • Talk to management or Human Resources. • File a complaint with the DFEH or EEOC. • File a lawsuit.

24. How Can Employers Defend Themselves From Claims of Race &/or National Origin Discrimination? • Do not discriminate. • Develop, implement and distribute a written non-discrimination policy. • Train all managers and supervisors on the non-discrimination policy.

25. How Can Employers Defend Themselves From Claims of Race &/or National Origin Discrimination? • Do not make statements based on stereotypes of a particular race and/or national origin. • Do not make employment decisions based on stereotypes of a particular race and/or national origin.

26. Questions?

27. Thank You!www.dfeh.ca.gov