Racial / Nat'l Origin Discrimination

Employees and employers should know that in many cases implementing and promoting “anti racist” training in the office that demonizes any race, including white race, is every bit as discriminatory and unlawful as any other type of illegal discrimination under California law. Employers should be careful not to push the “white privilege” idea on their workers because this can backfire in a significant way, and not only lead to litigation, but also cause an embarrassment to the company as a whole.

There is nothing potentially wrong about making seminars or information in written form available to emploeyees who wish to enrich their understanding of race related issues at workplace, as long as this informaiton doesn’t single out and doesn’t target any specific race more than others. Even thought mandatory DEI (diversity, equity and inclusion) training sessions haven’t been subjected to significant legal challenges so far, these types of events can be used as evidence of racial discrimination and racial harassment at workplace, if the content of those events demonize one race more than others. This includes being forced to acknowledge one’s race based privilege.

Employees who feel uncomfortable participating in these types of events should consider seeking help from their human resources department, upper management or an attorney.

Discrimination on the basis of an employee’s foreign accent is a sufficient basis for finding national origin discrimination. Fragante v. Honolulu (9th Cir. 1989) Indeed, the Equal Employment Opportunity Commission Guidelines currently define national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1 (2019). Thus, in Ortiz v Dameron Hospital Association (2019), the court referred to a manager’s statements with regard to Filipino workers that she “could not understand what they were saying’ and “did not know how they got their jobs speaking the way they do”, and that they “did not speak English” as significant evidence of national origin discrimination in violation of California FEHA. In Ortiz, this type of egregious evidence was also as sufficient basis for claims for constructive discharge, as well as hostile work environment.

On a practical level, it is a good idea for managers to avoid a situation where they lose patience with an employee’s accent an make derogatory comments about it, as this alone can lead to a lawsuit. And, if an employee with an accent complains that his co-worker/s mock his accent, the employer has the same obligation under the law to address and remedy that situation, as he would in any other situation where allegations of discrimination or harassment are made.

Articles Posted in Racial / Nat’l Origin Discrimination

Warning to Employers About “White Privilege” Anti Racist Training

Criticizing An Employee’s Foreign Accent May Be Evidence of Discrimination