Racial / Nat'l Origin Discrimination

June 28, 2024

Reverse Discrimination Against US Citizens At Workplace Is Unlawful

In Rajaram v Meta Platforms, Inc. (2024), an employee sued Meta for giving a hiring preference to H1B visa holders over US Citizens. The 9th Circuit Court of Appeal held that section 42 USC 1981 prohibits employer from discriminating against United States citizens, because an employer that does so gives one class of people – noncitizens, or perhaps some group of noncitizens – a greater right to make contract than “white citizens”. The court relied in their decision, in part, on the Supreme Court case McDonald v Santa Fe Trail Transportation Co. (1976). In that case, white employees of a company were fired for theft, but a black employee charged with the same offense was not. The fired employees then successfully sued under section 1981.

The holdings in both of the above cases seems to be reasonable and consistent with the very idea that reverse discrimination is every bit as unlawful as a more conventional discrimination against employees who belong to historically marginalized groups. Reverse discrimination against whites or men, is and should be every bit as illegal as a discrimination against US citizens in hiring and employment privileges.

August 19, 2021

Warning to Employers About “White Privilege” Anti Racist Training

by Arkady Itkin

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.

July 20, 2019

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

by Arkady Itkin

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.