California law provides that employment law protections are extended to all workers “regardless of immigration status.” Cal Civ. Code § 3339. Furthermore, under California law, “a person’s immigration status is irrelevant to the issue of liability” and in a proceeding to enforce a person’s employment rights, “no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.” Id.
California’s Anti-Discrimination laws extend to immigrants, including undocumented immigrants. Cal. Code Regs. tit. 2 § 11028. On July 1, 2018, new regulations from California’s Fair Employment and Housing Council (“FEHC”) clarified that discrimination based on immigration status is prohibited under the Fair Employment and Housing Act (“FEHA”). Cal. Code Regs. tit. 2 § 11028. In particular, through the 2018 regulations, the FEHC sought to make clear that immigration status discrimination is a subset of discrimination based on national origin.
Under FEHA, it is unlawful for an employer to discriminate against an employee “in compensation or in terms, conditions or privileges of employment” due to their national origin. Cal. Gov’t. Code § 12940(a). The 2018 regulations explicitly state that under FEHA the “national origin” protected category encompasses an employee’s immigration status. Cal. Code Regs. tit. 2 § 11028(f)(3). An employer who discriminates against an employee or applicant due to immigration status, must demonstrate by “clear and convincing evidence” that such discrimination is “required in order to comply with federal immigration law.” Id. Additionally, citizenship requirements that are a pretext for discrimination or serve the purpose of discriminating against employees or applicants on the basis of national origin or ancestry are unlawful. Cal. Code Regs. tit. 2 § 11028(h).
The 2018 regulations also explicitly state that threats of deportation or derogatory comments about immigration status or mockery of an accent or language may constitute harassment under FEHA. Cal. Code Regs. tit. 2 § 11028(j). Even a single threat of deportation, derogatory comment or incident of mockery may give rise to an unlawful hostile work environment under the act. Id.
As such, even though California law generally provides that immigration status should not interfere with a person’s employment rights, the FEHC’s 2018 regulations further clarified that immigration-status discrimination is prohibited by FEHA and is considered a subcategory of national origin discrimination.
The workers’ rights attorneys at Hunter Pyle Law have handled discrimination cases throughout California. If you have questions about your rights in the workplace, please feel free to contact us in order to utilize our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.