National Origin/Ancestry Discrimination
The New Jersey Law Against Discrimination (LAD), N.J.S.A., 10:5-1 et seq., prohibits unlawful employment discrimination against any person by reason of national origin, ethnicity or ancestry. Equal employment opportunities cannot be denied because of a person’s birthplace, ancestry, culture or characteristics of language common to a specific ethnic group. Equally true, employment opportunities cannot be denied because of marriage or association with a person of a specific ethnic group.
A claimant can prove a case of discrimination by showing that his national origin had a determinative influence in the decision to subject the claimant to an adverse employment action, e.g., disciplinary punishment, discharge, hostile work environment, etc. Further, an employer is strictly liable for damages caused by discrimination committed by supervisors, by non-supervisory employees and in some instances by third parties if the employer knew or should have known about the conduct, had control over the conduct and failed to take prompt appropriate corrective action.
Hostile work environment involves harassing conduct for the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. The use of ethnic slurs directed at an employee or an ethnic group he or she is a member of is an example of unlawful harassing conduct. When an employee alleges discrimination due to their national origin, the employee must demonstrate that the Employer’s conduct (1) would not have occurred but for the employee’s national origin, and (2) the conduct was severe or pervasive enough to make a, (3) reasonable person of that national origin believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.
In national origin based harassment claims a victimized employee’s accent, or lack of English fluency may become a target for abuse. A employer may not base a personnel decision based on an employee’s foreign accent unless the accent materially interferes with the employee’s job performance. Similarly, an employer’s requirement that an employee speak fluent English is only permissible if the requirement is required for the effective performance of the position for which it is imposed. Likewise, an employer’s rule that only English be spoken on the job is only allowable if put in place for a nondiscriminatory reason such as when it is necessary to promote the safe or efficient operation of the employer’s business.
In most discrimination cases, direct evidence of discrimination is hard to come by, such as comments related to a person’s protected status. Hence, well established case law permits a an employee to also prove discrimination circumstantially by setting forth evidence that the proffered reason for an adverse employment action was a pretext for discrimination and that intentional discrimination was more likely than not a determinative factor in the decision for the adverse employment action.
Our state legislature has determined that persons subjected to unlawful discrimination may suffer diverse and substantial hardships which give rise to remedies under LAD, including compensatory damages; economic loss; physical and emotional distress; search and relocation difficulties; anxiety caused by a lack of information, uncertainty and resultant planning difficulty; career, education, family and social disruption; adjustment problems; and severe emotional trauma, illness, homelessness, or other irreparable harm resulting from the strain of employment controversies. A person subject to unlawful discrimination is also afforded the remedy of punitive damages. The legislature has also determined that the prevailing party may be awarded reasonable counsel fees.
If you believe you are the victim of national origin discrimination in the workplace, do not hesitate to contact the attorneys at Mashel Law, LLC.
Mashel Law located in Marlboro, New Jersey, is dedicated exclusively to protecting the rights of employees.