Discrimination Claims Surge

by Rene Ciria-Cruz

Employment-discrimination cases rose by 20 percent in the past decade, but they've taken on a new twist, thanks to the globalization of America's workforce. Although lawsuits related to race and gender bias have decreased as a percentage of the Equal Employment Opportunity Commission's (EEOC) docket, charges of discrimination based on national origin grew by more than 65 percent between 1997 and 2010.

National-origin bias claims can be made if an employee or job applicant is treated less favorably because of language, accent, or ethnic background. California employers see more of these cases compared to the national average "because of the state's diverse demographics," says Christine Park-Gonzalez of the EEOC's Los Angeles office.

In 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).) The case is pending.

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.

For example, 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 last year over its language policy 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 hospital says the allegations are baseless; the case is set for trial next year.)

But national-origin bias extends beyond the workplace. William R. Tamayo, a regional attorney for the EEOC who is based in San Francisco, says he's seen the issue affect juries. After a successful trial in a rape-and-retaliation case Tamayo handled on behalf of a Spanish-speaking female farmworker, he reports, "a juror congratulated our team but then said of the witnesses in the case, 'These people have just got to learn English.' "

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