Workplace Harassment Based on National Origin – A Guide to California Law

Harassment based on national origin and ancestry in the workplace is strictly prohibited by California’s Fair Employment and Housing Act (“FEHA”).¹ National origin harassment includes harassment because of your:

• nationality,
• accent,
• ethnicity, or
• appearing to be from a particular part of the world (even if you actually are not).

Workplace harassment based on national origin or ancestry falls into the “hostile work environment” category of nonsexual harassment–which is treated the same way as sexual harassment under California labor law. ^{1 2}

What is national origin workplace harassment?

The legal definition of national origin workplace harassment under the FEHA is:

1. You experience unwelcome conduct or comments (workplace bullying) at work;
2. This harassment is based entirely or in part on your national origin or ancestry; and
3. This harassment is either pervasive or severe enough to alter the conditions of employment and create a hostile work environment.³

“National origin or ancestry” can mean the fact that you were born in a country other than the U.S., or the fact that your ancestors were born in a particular country.

It can also mean your co-workers believe that you were born in a particular country–regardless of whether that belief is true.

Example: If co-workers repeatedly harass a colleague whose parents are from India by calling him a “terrorist” because they mistakenly think he is from a majority-Muslim country in the Middle East, that may qualify as national origin workplace harassment.

The “pervasive or severe” requirement is key to defining national origin workplace harassment. Isolated teasing or occasional bigoted/insensitive remarks do not rise to the level of workplace harassment.

Instead, the behavior must either

• Happen frequently or many times, or
• Be extremely abusive in nature–which usually means that it involves either serious humiliation or a threat to your physical safety.⁴

This definition of “hostile work environment” harassment applies to numerous other forms of workplace harassment as well, including

• sexual orientation harassment,
• disability harassment,
• religious harassment,
• racial harassment and so forth.

What if the harassment is by a non-supervisor?

National origin workplace harassment by non-supervisors is prohibited just as harassment by supervisors is.⁵

If you are harassed by a supervisor based on your national origin or ancestry, the employer is liable for that harassment.

However, suppose the harassment is by someone other than a supervisor. In that case, you can only successfully sue your employer (as opposed to the harasser) for workplace harassment based on national origin or ancestry if your employer behaved negligently.⁶

Negligence with respect to workplace national origin harassment means that the employer needs to have

• known about the harassment and
• failed to take reasonable steps to prevent or stop the harassment.

What can an employer do to prevent harassment in the workplace?

Anti-immigrant rhetoric has grown more common in our country recently. An increased possibility of national origin workplace harassment (as well as of hate crimes against immigrants) is a natural result of this.

Employers who would like to avoid liability in a harassment lawsuit — and the toxic effect on employee morale of national origin harassment — should be proactive in preventing harassment.

Our California harassment attorneys recommend the following five steps to prevent harassment based on national origin, ancestry and other protected categories:

1. Create a written policy against harassment;
2. Communicate the anti-harassment policy to all employees;
3. Train supervisors on the anti-harassment policy;
4. Post the California Civil Rights Department’s poster on harassment in a prominent place; and
5. Distribute the California Civil Rights Department brochure on harassment to all employees and supervisors

How is national origin harassment different than discrimination?

The main difference between workplace discrimination and workplace harassment based on your national origin is that:

• discrimination results in an “adverse employment action” being taken against you (such as a firing or demotion), while
• harassment – while hurtful – does not directly affect your job status or duties (though the harassment may cause you to perform worse and, as a result, get fired).

Both discrimination and harassment based on national origin are unlawful under California and federal law. If you are a victim of either, you can file a complaint with the California Civil Rights Department (CRD) or the Equal Employment Opportunity Commission (EEOC).

Additional reading

For more in-depth information, refer to these scholarly articles:

• The Experiences of Bystanders of Workplace Ethnic Harassment – Journal of Applied Social Psychology.
• Once, twice, or three times as harmful? Ethnic harassment, gender harassment, and generalized workplace harassment – Journal of Applied Psychology.
• National origin harassment in the work place: recent guideline developments from the EEOC – Employee Relations Law Journal.
• The Consequences of Racial and Ethnic Origins Harassment in the Workplace – Race, Culture, Psychology, and Law.
• Racial and Ethnic Origins of Harassment in the Workplace – Handbook of Multicultural Competencies in Counseling and Psychology.

Legal References: