Title VII prohibits discrimination because of “national origin.”  The Equal Employment Opportunity Commission, the agency charged with the enforcement of Title VII, defines national origin discrimination as the denial of equal employment opportunity because of an individual’s ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group.

The EEOC has consistently scrutinized English-Only policies very closely and has taken the position that such policies can be a proxy for national origin discrimination.  

Given the amount of attention given to immigration issues on a national scale, the significant increase in national origin claims being filed with the EEOC in the last few years is no surprise.  Many of these claims arise from employers promulgating English-Only policies.  In the EEOC’s view only the most limited policies do not violate Title VII.

Recently, the EEOC brought suit against a California Nursing Home company that prohibited Spanish-speaking employees from speaking Spanish to Spanish-speaking residents, and also while on breaks or in the parking lot of the facilities.

According to the EEOC, in addition to being required to comply with an overbroad English-Only policy that the employer did not apply even-handedly, it was alleged that Hispanic employees were given desirable work than non-Hispanic counterparts, were paid less, and promoted less often.  In April 2009 the EEOC and the company settled for $450,000.

Hawaii employers are also finding it difficult to balance legitimate business needs and Hawaii employment practices law prohibiting ancestry or national origin discrimination.  Hawaii law, HRS Chapter 378, prohibits discriminating against an employee in the terms or conditions of employment, because of their “ancestry.” However, as a practical matter “ancestry” and “national origin” are synonymous under Hawaii law.

Hawaii law is arguably more expansive than Title VII in that employers are precluded from making pre-employment inquiries and requests for information which tend to lead to disclosure of the person’s ancestry/national origin, unless the inquiry is justified by a bona fide occupational qualification.

Both the EEOC and the Hawaii Civil Rights Commission (“HCRC”) have issued regulations addressing the issue of English-Only rules and whether and to what extent employers prohibiting foreign languages to be spoken in the workplace have violated the prohibition against national origin discrimination.

The EEOC and HCRC’s regulations presume that blanket English-Only rules are per se unlawful.  Their position also is that limited English-Only policies are lawful only if justified by business necessity.  2002 EEOC guidelines list the following examples where business necessity justifies an English-Only policy: 

Employers with English-Only rules should also consider doing the following:

Additional information may be accessed here: www.eeoc.gov/policy/docs/national-origin.html#VC.

Roman Amaguin, Esq; http://www.amaguinlaw.com; http://www.employmentlawyerhawaii.com

If you’ve been the victim of discrimination, harassment or retaliation in your employment in California, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.

Despite the economy and the current economic condition of the State of California, the Department of Fair Employment and Housing, the EEOC and the Department of Labor Standards Enforcement (DLSE) division of the Department of Industrial Relations still advise California labor attorneys that they have the resources to investigate complaints.

Employees who have signed arbitration agreements or who have received threats of legal action if they file a claim with any of these agencies should first contact a California labor lawyer but should also note that the State of California and the Federal Government generally will not recognize such restrictions on California and U.S. employees. Indeed, attempts to restrict employees from having government agencies investigate wrongdoing by employers may undergo severe scrutiny.

Generally, valid waivers of rights must specifically refer to the rights or claims that are being waived. They may not generally waive rights or claims that may arise in the future without additional language. And they must advise the individual in writing to consult an attorney before signing the waiver.

The position of the EEOC, for instance, is that even a valid waiver of rights by an employee does not affect the EEOC’s rights and responsibilities to enforce the law. While a valid arbitration agreement may require arbitration between an employee and an employer, it does not bar the EEOC from seeking judicial relief on behalf of an employee.

Indeed, retaliation against an employee after she reports harassment or discrimination by terminating the employee, and then a company’s further retaliation either by threatening legal action or by termination may constitutes a separate claim on top of the original claim for harassment or discrimination. Unfortunately, employees without the benefit of counsel from a California labor lawyer may be taken in by such threats.

Both the DFEH, the EEOC may handle a discrimination, harassment and retaliation claim and the DLSE/DIR’s Sacramento office which enforces retaliation laws, may act simultaneously, so long as the matters are timely filed with each agency within the appropriate statutes of limitations.

With the DFEH, once the employee or ex-employee makes an appointment to start the process, the wheels will begin turning but the statute of limitations is not tolled until a complaint is filed by the employee. With the EEOC, once the employee files an intake questionnaire and an affidavit describing the discrimination, the filing requirement will be met with the EEOC, after which the EEOC will notify the employer of the filed charge. After the EEOC receives the charge, they are obligated to conduct an investigation and they have the power to issue subpoenas in connection with their investigation. If the EEOC finds unlawful discrimination, they have the power to eliminate such unlawful practices. Even an enforceable agreement binding an employee to arbitrate disputes with the employer does not affect the EEOC’s power to sue the employer to enjoin further violations. Nor does it bar the EEOC from seeking victim-specific relief, including money damages.

If the EEOC is unable to secure a conciliation agreement with an employer within 30 days after a charge is filed, the EEOC may file a civil action against the employer and may seek temporary or permanent relief.

If the DFEH decides to pursue a matter themselves, they may issue an accusation and prosecute the claim before the Fair Employment and Housing Commission (FEHC). Like the EEOC, the DFEH has the power to issue subpoenas, take depositions and serve written interrogatories. If they find a violation, they will seek to eliminate it.

The DFEH has the authority to issue cease-and-desist orders, and to award reinstatement, backpay, front pay, emotional damages, and an administrative fine. The amount of that fine is determined by factors which include willful, intentional or purposeful conduct, refusal to prevent or eliminate discrimination, conscious disregard for the rights of employees, commission of unlawful conduct, intimidation or harassment, conduct without just cause or excuse and multiple violations of the FEHA.

While the amount awarded for emotional distress may not exceed $150,000 for each person, an additional amount of $150,000 may be awarded for intimidation. The FEHC may also award reasonable attorney fees, including expert witness fees to the prevailing party. However, the award to the prevailing party is discretionary and the courts generally do not require a losing plaintiff to pay the employer’s California labor attorney’s fees and costs.

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color, as well as national origin, sex and religion. It applies to employers with 15 or more individuals. It is unlawful for an employer to discriminate against any individual, even if that discrimination is prompted by the racially motivated actions of other employees.

Title VII prohibits offensive conduct that is unwelcome and offensive, and that is severe or pervasive. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Employers may not fire or otherwise retaliate against or take an adverse action against an individual for filing a charge of discrimination.

Adverse actions include an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Prohibited acts of retaliation can occur after termination and receive the same scrutiny by the DFEH whether they occur before or after termination.

Protected activities of employees include complaining to anyone about alleged discrimination against oneself or others, taking part in employment discrimination proceedings, and filing a charge of employment discrimination.

While the amount of damages that can be awarded for compensatory and punitive damages recoverable under Title VII go up to only $300,000 against companies with 501 or more employees, there are no such limits under the FEHA. Even under Title VII, damages for emotional distress may be awarded. Title VII specifically authorizes compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses.

Before the Civil Rights Act of 1991, neither compensatory nor punitive damages were recoverable under Title VII. By contrast, both types of damages were and are available under the FEHA. Punitive damages are also now available against nongovernmental entities under Title VII for cases of intentional employment discrimination, including cases proved by disparate treatment where the respondent engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an aggrieved individual. The standard is similar with the FEHA.

One of the recurring themes employers use to justify the termination of an employee they have harassed or discriminated against to California labor lawyers, is that the termination was part of a planned reduction in employees. However, under the law, even if good cause exists for a reduction in force, an employer’s decision to lay off certain employees while retaining others may be challenged by a California labor attorney under applicable anti-discrimination laws. A case involving just this situation receiving a great deal of national publicity involves the lay offs of a disproportionate number of women from Wall Street institutions.

Employers are bound by state laws that provide greater protection for employment than comparable federal laws, which is the reason most employment claims are filed with the FEHA.

When it comes to harassment and retaliation, the California constitution prohibits harassment based upon factors which include race, color, sex, national or ethnic origin. Discrimination based on physical or mental disability, marital status, a medical condition (including pregnancy and child birth) and sexual orientation is also prohibited. The FEHA also requires employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

With the DFEH, the interviewing consultant drafts a formal complaint. If the complaint is accepted for investigation, the complaint is also filed with the EEOC. After the DFEH issues an accusation, the DFEH may litigate the case in a public hearing before the Fair Employment and Housing Commission. If emotional distress damages or administrative fines are sought, the employee can have the case moved to a civil court. If the case is moved to court, the DFEH prosecutes, but the complainant is the real party in interest.

Government codes section 12965(b) requires that individuals must exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a “right-to-sue notice” from the Department before filing a lawsuit. The DFEH, however, will accept requests for an immediate “right-to-sue-notice” from persons and from their California labor lawyers for clients who have decided to proceed in court. A DFEH complaint must be filed within one year from the last act of discrimination or you may lose your right to file a lawsuit.

Once a “right-to-sue-notice” is received from the DFEH, the employee has one year to file a civil lawsuit. Failure to do so may again cause you to lose your right to sue.

Common mistakes by harassment victims are not telling the person doing the harassment to stop, not documenting the harassment by that person, not reporting the harassment to your superiors, not making sure the employer is taking action to end the harassment, not obtaining medical or psychological help when needed, not realizing that retaliation is illegal, accepting the word of your employer that you do not have a case for harassment or discrimination, not filing a DFEH, EEOC or DLSE/DIR complaint within the time allowed, not having an attorney assess whether any arbitration agreement is binding, and not consulting with an attorney.

A complaint to the EEOC under Title VII of the Civil Rights Act of 1964 must be made within 180 days from the date of the incident. This period, however, is extended to 300 days if the employee also files a complaint with the DFEH. Complaints of discrimination commonly include discrimination based on race, color, religion, sex, national origin, age, handicap, sexual orientation and retaliation or reprisal. That time period, however, can be reduced to as little as 30 days after a complainant receives notice that a state agency such as the DFEH has terminated its processing of a charge. It is thus best to contact the EEOC immediately whenever discrimination is suspected because of its short statutes of limitations.

In addition, many governmental agencies require that for an employee or applicant for employment to preserve their rights under EEO laws, they must contact an EEO Counselor within 45 calendar days of the alleged discriminatory action. There are exceptions and grounds for extending this period, but neither a complainant nor his or her California labor attorney does not want to be in a position to be having to argue those grounds as the complaint may be deemed too late to be accepted.

Once a complaint is filed with the EEOC, if the EEOC finds substantial evidence of discrimination, it will file a lawsuit. If the EEOC does not find sufficient facts to support the complaint, it dismisses the complaint and issues a “right to sue” letter to the complaining party. A lawsuit must then be brought by the complaining party within 90 days of receiving the Right to Sue letter from the EEOC.

A much less publicized and less known agency, even among California labor attorneys in the State of California at which complaints for retaliation and discrimination can be filed is with the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR). An employee or job applicant alleging violation of any law under the jurisdiction of the Labor Commissioner must file a complaint with the DLSE within six months of the adverse action. Adverse actions include unlawful discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote and other actions. There are, however, some exceptions to the 6-month deadline, but again, it is best to file a complaint as soon as possible to ensure that it is timely.

Filing a complaint with the Labor Commissioner does not prevent a person or their California labor lawyer from filing a private lawsuit.

Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been the victim of harassment, discrimination or retaliation in your employment in California.

Finally, an employee or job applicant who alleges retaliation for having complained about a workplace health or safety issue has the right to file a concurrent complaint with the federal OSHA within 30 days of the occurrence of the adverse action.

Whistleblowers may identify and report actual theft, false claims, over billing, up coding, unbundling, kickbacks, false certifications, violations of governmental regulations, destruction of company records, workplace violence, safety hazards or unsafe working conditions, environmental concerns, substance abuse, general conflicts of interest, release of proprietary information and other types of fraud or occupational concerns.

Whistleblowers are protected by agencies and laws from the government which include:

. Americans with Disabilities Act (ADA)

. Civil Rights Act of 1866 (since amended numerous times)

. Federal Equal Employment Opportunity Commission (EEOC)

. Federal False Claims Act

. Occupational Safety and Health (OSH) Act of 1970

Under the OSH Act of 1970, employers may not discharge or in any manner discriminate against any employee because an employee has filed any complaint, or instituted or caused to be instituted, any proceeding under or related to this Act.

Additionally, the employer may not terminate an employee who has testified, or is about to testify, in any such proceeding.

Under the Act, an employee who believes that a work hazard exists, whether or not they have filed a claim, has legal protection to refuse to work if all of the following apply:

. The employee faces death or serious injury and the hazard is so clear that a reasonable person would agree with the seriousness of the hazard.

. The situation is so urgent that there is not time to eliminate the hazard through regulatory channels.

. The employee has tried to get the employer to

correct the dangerous condition and they have not complied.

OSHA also administers the whistle blowing provisions of thirteen other statutes, protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental and securities laws.

The Federal False Claims Act provides the legal framework for claims alleging fraud against the federal government, and it does several important things for a whistleblower:

. Provides specific protection for the whistleblower from discharge, demotion, suspension, threats or other harassment or discrimination that the whistleblower may encounter due to lawful actions taken in the furtherance of a whistleblower claim, if the employee is still works for the employer.

. Provides for filing a whistleblower complaint under seal, which means that no one other than the government, not even the defendants alleged to have committed the fraud, can know of the complaint until after the government has investigated the claims.

. Anywhere from 15 to 25 percent of the entire recovery can be made in some instances by the whistleblower.

Eleven states and the District of Columbia also have their own false claims acts that closely resemble the Federal Act.

Whistleblower laws allow for the contingent fee representation of whistleblowers. The Federal False Claims Act also provides that a whistleblower’s attorney’s fees be paid by the entity that committed the fraud in the event of a government recovery. If the case is succesful, then there are no expenses or monetary costs to the employee.

Anyone who knows of fraud against the government can become a whistleblower. Usually it is employees or ex-employees who report fraud of a corporation because they have the most knowledge of internal operations.

The law only protects one whistleblower-based claim. The first to file based on specific information about a particular fraud preempts other whistleblowers and their claims. In addition, an employee cannot bring a whistleblower complaint if information about the fraud becomes public before bringing a claim.