7 Myths About National Origin Discrimination

​Myths about national origin discrimination in the workplace abound, and it can fall to HR professionals to dispel the misconceptions, which can lead to costly legal claims.

A recent national origin discrimination case before the California Court of Appeal resulted in $150,000 in compensatory damages, $719,528 in attorney fees and $20,085 in costs against the city of Burbank.

"In an increasingly ethnically diverse workplace, addressing national origin discrimination in the workplace can present HR professionals with unique challenges," said Mark Fijman, an attorney with Phelps Dunbar in Jackson, Miss. "Proper training of management and employees, clear and consistently enforced anti-discrimination policies, and an effective system of reporting and responding to such claims are the best ways to address and eliminate any instances of national origin discrimination in your workplace."

Officer Was Harassed

Steve Karagiosian, a police officer of Armenian descent who worked for Burbank, Calif., testified that beginning in July 2004, other police officers harassed him about his national origin. Officers allegedly would repeatedly mimic Armenians' accents and make disparaging comments about Armenians, referring to them as "towel heads."

When Armenian suspects were arrested, one officer sometimes would say to Karagiosian, "I arrested your mother," "I arrested your father" or "I arrested your grandfather." Once, when the officer made the last comment, another officer said, "Yeah, and he stinks."

In the summer of 2005, Karagiosian received by e-mail a video making fun of Armenians. He alerted a lieutenant and others in the department about the video, but no investigation was conducted.

The harassment continued with his work mailbox being filled with Armenian cultural artifacts, such as Armenian flags, CDs of Armenian singers and small boxing gloves with the Armenian flag on them. He did not report these incidents for fear of retaliation. The mimicking still went on, as well as police officers making disparaging comments about Armenians they interviewed at crime scenes.

Finally, in March 2008, someone sent the chief of police an anonymous letter complaining about a hostile work environment. One officer was investigated. Everyone in the Burbank Police Department was ordered to visit the Museum of Tolerance in Los Angeles and attend a four-hour cultural sensitivity training session. But those identified by Karagiosian as needing more training did not receive additional instruction.

An outside attorney conducted an investigation following receipt of the letter. There had been a lull in the harassment but it resumed soon after an investigation in March 2008, culminating in particularly egregious harassment in February 2009. Officers again mimicked Armenians' accents and one officer said about a murder that there was "no human involved" when the victim was an Armenian.

Then, other officers showed Karagiosian a whiteboard on which three stereotypical Armenian statements were written: "My friend … 100 percent"; "I tell you everything … 100 percent"; and "Sir, please, I beg you no problem." He reported the incident to his supervisor and said that he thought the incident should be investigated but the chief of police disagreed.

Karagiosian filed a complaint, alleging that the city had violated the California Fair Employment and Housing Act for discriminating based on Armenian national origin. In the case before the state Superior Court, a jury agreed and awarded compensatory damages; the Superior Court also awarded attorney fees.

On appeal to the California Court of Appeal, the city argued that it had no way to know of the harassment before the anonymous letter, but the court disagreed in a Dec. 22, 2016, ruling, noting that Karagiosian had alerted a lieutenant and others to the video.

The court did not accept the city's argument that the use of vulgar language when referring to suspects is a "natural element" of police work. It also rejected the city's assertion that the complaint was brought too late to satisfy the state's statute of limitations.

This case is Karagiosian v. Burbank Police Department, B243622 (Calif. Ct. App. 2016).

Common National Origin Discimination Myths

• Myth: Conducting an investigation when allegations of a hostile work environment are made will insulate the company from liability.
  
• Fact: Claims still may be brought despite investigations, noted Tom Spiggle, founder of The Spiggle Law Firm in Arlington, Va., Nashville, Tenn., and Washington, D.C., though investigations may as a practical matter resolve problems and thereby prevent lawsuits.
  
• Myth: The person who files a lawsuit has to be from the country upon which the discrimination is based.
  
• Fact: "It is illegal to discriminate against someone perceived to be from a certain country whether they are or not," he said. For example, a company could be held liable for subjecting someone to a hostile work environment based on the belief that the person was of Middle Eastern nationality, when that person, in fact, was born in the United States.
  
• Myth: It is not possible for a person to discriminate against someone of the same national origin.
  
• Fact: Not true, said William Stein, an attorney with Epstein Becker Green in Los Angeles. An employee also might unlawfully discriminate against another worker who is from a neighboring country, noted Angela Cummings, an attorney with FordHarrison in Charlotte, N.C.
  
• Myth: Giving an employee a nickname cannot be considered discriminatory.
  
• Fact: This is another misconception, Stein added. "If the employee is given a nickname because his name is too ethnic to pronounce or to Americanize his name, that could be evidence of discrimination or harassment."
  
• Myth: An employer can always require employees to speak only English at work.
  
• Fact: Employers can require employees to speak only English at work if they can show that doing so is a business necessity, such as for safety reasons, Stein noted. One in 10 working adults in the U.S. has limited proficiency in English, and there is a lower rate of English proficiency in metropolitan areas, noted Patti Perez, an attorney with Ogletree Deakins in San Diego. Seven of the 10 metropolitan areas with the highest percentage of working adults with limited English proficiency are in California, according to the California Fair Employment and Housing Council, which issues regulations that implement California's employment anti-discrimination laws.
  

[SHRM members-only HR Q&A: National Origin Discrimination: Can we require that employees speak only English in the workplace?]

• Myth: Undocumented workers cannot sue under anti-discrimination laws.
  
• Fact: While an undocumented worker clearly is not entitled to reinstatement, he or she is entitled to unpaid wages and could recover damages for discrimination or harassment based on national origin, she said.
  
• Myth: National origin claims can be brought only against companies owned by U.S. citizens.
  
• Fact: The claims also may be brought against companies run by foreign-born executives, noted Michelle Johnson, an attorney with Nelson Mullins in Atlanta. "It is important to educate company leaders, whatever their country of origin, to ensure that they understand what the law requires with respect to decisions that affect employees from other cultural backgrounds," she said.
  

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