Which Labor Code Section Addresses Immigration Discrimination?

The California Labor Code applies to all workers in California, regardless of their immigration status. California Labor Code section 1171.5 was passed to ensure undocumented immigrants and illegal aliens have all the protections allowed under State law. Labor Code section 1171.5 provides that “all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”

Further, Labor Code section 1171.5 provides that for purposes of enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status. The statute accordingly leaves “no room for doubt about this state’s public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights and employee housing laws.” Case law points us to Hernandez v. Paicius, (2003) 109 C4th 452, 460.

How does the Fair Employment and Housing Act (FEHA) play a role in immigration discrimination?

According to the workplace discrimination attorneys at Kingsley and Kingsley Lawyers, FEHA prohibits harassment and discrimination in employment because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave (Government Code sections 12940,12945, 12945.2) and/or retaliation for protesting illegal discrimination related to one of these categories, or for reporting patient abuse in tax supported institutions. You may file a private lawsuit under the Fair Employment & Housing Act. For employment discrimination issues, you are required to exhaust your administrative remedies with the Department by securing your Notice of Right to Sue.

FEHA proscribes two types of discrimination: (1) discrimination arising from an employer’s intentionally discriminatory act against an employee because of his or her immigration status (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer’s facially neutral practice or policy that has a disproportionate effect on immigrant employees (referred to as disparate impact discrimination). Case law dealing with disability discrimination references Knight v. Hayward Unified School Dist., (2005) 132 Cal.App.4th 121, 128-29.

What types of employer policies or actions lead to claims of discrimination?

Certain types of policies and actions by employers have lead to claims of discrimination based on national origin or ancestry. Several of these possible claims include:

  • English only policies at work,
    • An employer requiring employees to speak English while at the workplace was discriminating against non-English speakers and was prohibiting them from speaking on the job whatsoever. Garcia v. Spun Steak Co. (9th Cir. 1993) 998 F2d 1480, 1488.
    • Although, rules against the use of foreign languages at the workplace may be upheld if there is a legitimate business necessity and the employees have notice. Cal. Gov. Code §12951(a).
  • Discrimination based on a person’s accent,
    • Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F3d 1185, 1195.
  • Dress codes at work that discriminate against a person’s ethnic dress.

What does a plaintiff need to prove when bringing a claim for discrimination based on an employee’s immigration status?

In order to bring a claim for immigration discrimination, a plaintiff needs to prove that:

  • The employee is an immigrant from another country
  • That the employee’s job performance was satisfactory, or that the employee was qualified for the job which they were not hired for,
  • That the employee was subjected to discriminatory conduct, (Ex: being discharged from work)
  • That other employees who were not immigrants were not subjected to the discriminatory actions of the employer.

Can an experienced lawyer help?

If you believe you have taken all the necessary steps and are still unsatisfied with the result, you may need to seek legal counsel about the feasibility of filing a lawsuit. Both Title VII of the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights and permit recovery of past lost wages and benefits, future wage loss, emotional distress damages, attorney fees and possibly punitive damages, if a violation has been found. No matter what situation you have found yourself in, you can be confident in our ability to get you the compensation you need.

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