California and federal law prohibits employers from discriminating against employees based on their protected status. An employee’s national origin is considered to be a protected status, thus, it is illegal for employers to discriminate based on an employee’s national origin. National origin discrimination is primarily composed of two factors. The first is the discriminatory act or adverse employment action. The second factor is the employer’s adverse employment action being substantially motivated by the employee’s national origin.
Discriminatory Act or Adverse Employment Action
For an employee to experience illegal discrimination, he or she, must be subjected to an adverse employment action. An adverse employment action is an action, or a series of actions, that materially or adversely affects the terms, conditions, or privileges of employment. In general, this occurs when an employee is treated less favorably than other employees.
Not all mistreatment qualifies as an adverse employment action. When evaluating whether behavior is an adverse employment action, the law examines the severity and pervasiveness of the action. Generally, an offhand comment, minor social slight, or isolated incident is not enough to materially or adversely affect an employee’s terms, privileges, or conditions of employment. However, a series of minor actions may constitute illegal discrimination. Examples of adverse employment actions based on national origin discrimination will be given in the next section.
National Origin as a Substantial Motivating Reason
Unlike other forms of discrimination, national origin discrimination centers around the unfavorable treatment of an employee based on the individual’s national origin. An employee’s national origin encompasses various characteristics, such as culture, ethnicity, language or accent, country of origin, or perception of belonging to a particular ethnic group.
To show illegal discrimination, an employee cannot simply demonstrate that his or her national origin was involved in the mistreatment. Under discrimination law, a victim’s national origin must be the substantial motivating reason for his or her mistreatment. A substantial motivating reason means that the cause of the employee’s mistreatment is more than some remote or trivial incident. Although the employee’s national origin must be a contributing reason for the adverse employment action, it does not have to be the only reason for the discriminatory act.
Common examples of national origin discrimination are:
- Refusing to hire or recruit based on citizenship, immigration status, or nationality;
- Permitting offensive remarks or actions based on an employee’s ethnicity, country of origin, cultural habits, accent, clothing, etc.;
- Failing to promote, provide equal pay or benefits, or fairly discipline employees based on their national origin;
- Terminating employees based on their national origin;
- Segregating employees because of their actual or perceived national origin.
Other Types of National Origin Discrimination
National origin discrimination is not limited to adverse actions directly related to an employee’s national origin. The following actions are also considered forms of illegal discrimination:
- Discrimination based on perceived national origin. An employer is still liable for discrimination, even if it is mistaken about an employee’s actual national origin.
- Discrimination based on association with an individual possessing a protected characteristic. An employer cannot mistreat an employee because he or she is married, or associated, with a person of a specific national origin.
- Discrimination based on language or accent. Except in limited circumstances, such as workplace safety, an employer cannot require employees to only speak English or make employment decisions based on an employee’s accent.
- Discrimination by an individual with the same national origin. As long as the mistreatment is based on an employee’s national origin, individuals of the same national origin are liable for illegal discrimination.
Lastly, discrimination laws apply to employers and employees regardless of their citizenship status. An employer cannot rely on an employee’s citizenship status as a defense to illegal discrimination. Additionally, foreign corporations may still be subject to anti-discrimination laws.
Finding a National Origin Discrimination Lawyer in California
The attorneys at Hunter Pyle Law believe that all workers deserve to be treated with fairness and dignity and have extensive experience advocating for clients that are victims of illegal discrimination. If you have any questions or concerns about national origin discrimination at your workplace, contact Hunter Pyle Law for a free and confidential intake.