National Origin, Immigration and Language Rights Program
The National Origin, Immigration and Language Rights Program provides numerous legal services to workers who face discrimination because of their national origin, as well as national origin minority communities who are disproportionately subject to particular types of workplace abuses.
The LAS-ELC's work in the national origin area includes its Language Rights Project - since one's primary language is often a close proxy for one's national origin - as well as its Immigrant Workers' Rights Project. But since national origin discrimination often occurs against native-born Americans whose first language is English, the LAS-ELC also seeks to challenge practices that have an adverse impact, or are overtly discriminatory, against Latinos, Asian Pacific Islanders, and other national origin minority communities more generally.
 Click to help support the work of this program with a tax-deductible gift.
Click to view legal information fact sheets related to the National Origin, Immigration and Language Rights Program.
Click to view sample letters and self-help tools.
The Language Rights Project
The Language Rights Project (LRP) is dedicated to combating discrimination against language minorities - that is, those persons whose primary language is not English. The Project focuses not only on language discrimination in employment, but also in the provision of government and business services, and in education.
Background and History:
As overt racial and national origin discrimination gradually become less tolerated by society, they have "gone undercover" and taken on more subtle forms, including discrimination based upon individuals' language-related characteristics. Such discrimination affects one of the most vulnerable populations in our society - recent immigrants at the bottom of the socioeconomic ladder who are struggling to learn English, hold on to poorly paid jobs, or obtain access to badly needed social services. Language discrimination can affect anyone whose native language is not English, a community that constitutes a huge segment of the United States' population. Approximately 18% of U.S. residents and 40% of California residents over the age of five speak a language other than English at home. Census 2000 Supplementary Survey.
The Project challenges language discrimination in the workplace, including English-only rules, unwarranted English proficiency requirements, and accent discrimination, under Title VII of the Civil Rights Act of 1964 and California's Fair Employment and Housing Act, among others. To address the lack of bilingual services by government agencies, the LRP utilizes Title VI of the Civil Rights Act of 1964, California's Dymally-Alatorre Bilingual Services Act and, locally, via San Francisco and Oakland's Equal Access to Services ordinances. The Project challenges discrimination by private businesses and educational institutions through a variety of measures.
Project Services
- Legal advice and counseling: The Project provides individualized assistance and legal counseling to callers via the toll-free, nationwide Language Rights Information Line (800-864-1664; services provided in Spanish, Cantonese, Mandarin, and English).
- Community outreach and education: To educate language minority communities and others about language rights, the LRP utilizes public service announcements and other media coverage. The Project also makes available fact sheets and self-help materials in Chinese, Spanish, and English. Please see the self-help tool English-Only Rules in the Workplace. Language rights attorneys conduct presentations and trainings upon request.
- Technical assistance: Language rights attorneys provide free technical assistance to attorneys and other advocates and service providers around the country in the areas of employment, the provision of government and business services, and education. Summaries of language rights case law are available upon request.
- Litigation: The Project litigates cases on behalf of language minorities in employment, the provision of government and business services, and education.
- Legislative advocacy: The Project participates in legislative efforts on the federal, state, and local levels on behalf of language minorities.
En Español
back to top
Related Links
For additional information on the Language Rights Project, including the Project's press releases, click
here.
For language rights articles focusing mainly on Official English laws and bilingual education, click
here.
Legislative Work
AB 800 (English-only rules in the workplace):
Signed by Governor Davis on September 12, 2001, AB 800 amended the California Fair Employment and Housing Act to prohibit employers from requiring employees to speak only in English without a valid business necessity. Authored by Assemblymember Herb Wesson (D-Los Angeles), the Project worked with other immigrant rights advocates to get the bill passed.
To view the text of the statute, click here. Para ver el texto en Español, haga clic aqui. If you are required to speak only English at work, and you work in California, click here for self-help materials citing AB 800.
Dymally-Alatorre Bilingual Services Act (Cal. Govt. Code §§ 7290 et seq.): The Project has been working for several years as part of a coalition to strengthen and increase funding for the implementation of the Dymally-Alatorre Bilingual Services Act, which requires state and local government agencies to provide bilingual services.
San Francisco's "Equal Access to Services" ordinance: Working in coalition with other community groups, Project staff drafted an ordinance which requires San Francisco city departments to provide written translation and bilingual staff for the most common languages spoken by city residents. After intensive efforts by the Project over the span of two years, the ordinance was passed by the San Francisco Board of Supervisors on June 4, 2001 with Supervisor Mark Leno as sponsor. For the text of the ordinance, click on the links below.
EAS Ordinance, Part 1
EAS Ordinance, Part 2
Oakland's "Equal Access to Services" ordinance: Using a draft of the San Francisco ordinance as a model, the City of Oakland enacted a parallel ordinance which similarly requires city departments to provide written translation and bilingual staff for certain common languages.
Significant Cases
Angel V. v. Davis (formerly Valeria G. v. Wilson): This is a federal constitutional and statutory challenge to Proposition 227 (also known as the "Unz Initiative"), enacted in June 1998, which outlawed bilingual education in California schools and replaced it with an untested brand of short-term English "immersion." The Project is co-counseling this case with a broad coalition of education and civil rights advocates, including Multicultural Education, Training, & Advocacy, Inc. ("META"), the Mexican-American Legal Defense and Educational Fund ("MALDEF"), and the Asian Pacific American Legal Center of Southern California ("APALC"). Angel V. is now before the U.S. Court of Appeals for the Ninth Circuit on plaintiffs' claim that Proposition 227 - by requiring a statewide voter initiative or a supermajority vote of the California Legislature to approve any changes to it -- unconstitutionally deprives language minority advocates of the right to challenge its elimination of bilingual education through normal legal and political means.
Garcia v. Spun Steak Company: In Garcia, two Latina workers at a South San Francisco meat processing plant were disciplined and subjected to the threat of termination for having spoken Spanish despite the plant's "speak-English-only" rule. The Project, assisted by Coblentz, Cahen, McCabe & Breyer, filed suit on behalf of the employees and their union to enjoin the policy. Although the U.S. District Court agreed with the plaintiffs that the rule discriminated against them because of their national origin in violation of Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act ("FEHA"), the U.S. Court of Appeals for the Ninth Circuit disagreed and remanded the case in order to apply its narrower construal of "adverse impact" under Title VII. In addition, however, the Ninth Circuit stated that an English-only policy could be imposed in such a way as to create an unlawful "hostile work environment" against language minority employers.
back to top
Kim v. The Northwestern Mutual Life Insurance Co.: The Project, joined by MALDEF and the Wilson, Sonsini law firm, filed a class action suit under federal and state law against Northwestern because of its admitted policy of rejecting life insurance applicants whom it deemed not sufficiently proficient in English. The case was successfully resolved when Northwestern agreed, among other things, to embark upon a sweeping national program to provide multilingual access to all of its insurance products, provide monetary relief to the class of persons who had been denied coverage because of the policy, and to set up a consumer education fund to combat unfair insurance practices.
Lau v. Hopp (formerly Lau v. Nichols): This case, initially filed by the LAS-ELC and the San Francisco Neighborhood Legal Assistance Foundation in 1970, successfully challenged the failure of the San Francisco Unified School District ("SFUSD") to afford equal educational opportunities to its Chinese-speaking students, most of whom were forced to sit through English-only classes without being able to comprehend their instruction. After a landmark 1974 U.S. Supreme Court decision finding that this failure constituted a violation of Title VI of the Civil Rights Act of 1964, the parties entered into a court-enforced consent decree requiring SFUSD to institute methods ensuring those students full and nondiscriminatory access to an equal education. The Project has been actively involved in monitoring SFUSD's compliance with the Lau consent decree.
Martínez v. Millan: This case arose when a Spanish-speaking employee, who sought to recover unpaid wages from his former employer, had his claim dismissed by the California Labor Commissioner due to his inability to understand the English-only proceedings at a hearing on his claims, and his resulting alleged "failure to cooperate" with the Labor Commissioner. The case, originally filed by California Rural Legal Assistance, Inc. ("CRLA"), was transferred to the Project. With assistance from Heller, Ehrman, White & McAuliffe, the Project successfully negotiated a court-enforced, statewide settlement requiring the Labor Commissioner to take practical steps to ensure, among other things, that no wage claimant will be denied access to its services, irrespective of the language(s) she speaks.
Martínez v. Vencor, Inc. and Lenox Healthcare, Inc.: The Project represented nine nursing home workers - speakers of Spanish, Tagalog, and Haitian Creole - and their union in a Title VII action against their San Rafael employer's "speak-English-only" policy. Under that policy, employees were written up for speaking their primary languages in personal conversations during breaks, in elevators and broom closets, and even when they were actually speaking English but simply assumed to be doing otherwise. As a consequence of the highly favorable settlement in this case, each of the individual plaintiffs received monetary relief, and the defendants were required to institute numerous forms of injunctive relief, including rescission of the offending policy and replacing it with a nondiscriminatory one, posting it in all relevant languages, and conducting supervisor and employee diversity trainings.
back to top
Ramirez v. U.S. General Services Administration: This litigation arose when five Filipino-American security guards were removed from their duties at a San Francisco federal office building by their private employer and the GSA, based on the incorrect assumption that their accented spoken English prohibited them from performing their duties. The Project, the Asian Law Caucus, and the Howard, Rice law firm filed an federal court challenge to this action under the equal protection and due process clauses of the Fifth Amendment to the U.S. Constitution, 42 U.S.C. § 1981, and the FEHA. Although portions of the settlement remain confidential, the defendants instituted policies to ensure that accent discrimination of this kind would not recur in the future, and the five plaintiffs received substantial monetary relief.
Reed v. California Dept. of Health Services: In this case, a Latina certified nursing assistant was fired from her job at a Gilroy, California nursing home when she spoke a few words of Spanish in violation of that facility's "speak-English-only" policy. The Project, later joined by the U.S. Equal Employment Opportunity Commission ("EEOC"), forced the facility to rescind its policy and to compensate the employee for her termination. As an additional aspect of the settlement, CDHS issued a statement to the approximately 1,000 nursing home facilities statewide that no federal or state regulations either support or can be used to justify the use of such rules, as the nursing home in this case had claimed.
Rivera, et al., v. NIBCO, Inc.: The Project, along with public interest co-counsel, is litigating this Title VII and FEHA challenge to a Fresno manufacturing plant's use of an English proficiency test to lay off three dozen workers, all of whom were either Latino immigrants or Southeast Asian refugees. The lawsuit, filed in the U.S. District Court for the Eastern District of California in 1999, alleges that these workers were terminated from their jobs - even though many had worked there for well over a decade - despite the fact that the examination at issue had a plainly discriminatory impact on workers of color, and was neither job-related nor necessary for the operation of the plant.
Sandoval v. Hagan: Based on the Alabama Attorney General's interpretation of that state's "official English" law, the Alabama Department of Public Safety withdrew all versions of its driver's license examinations that were in languages other than English. The Project joined the Southern Poverty Law Center in its suit to enjoin Alabama's discriminatory denial of previously-offered bilingual tests to limited English-proficient applicants. The U.S. District Court for the Middle District of Alabama determined that this withdrawal of the non-English tests violated Title VI's "adverse impact" regulations, and ordered the state to reinstitute them. The district court's judgment was affirmed by a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit and, later, by that Court sitting en banc. However, the U.S. Supreme Court - importantly, without deciding any of the language-related issues of the case - ruled that individuals did not have private standing to sue under those regulations. As a consequence of Sandoval, however, Alabama has voluntarily agreed to resume offering the examinations in all of the languages in which it had previously been available.
United States v. Alameda County: The U.S. Department of Justice filed a complaint against Alameda County for the denial of bilingual voting assistance in violation of the federal Voting Rights Act of 1965. The case settled pursuant to a consent decree filed by the parties. As part of a coalition of community groups, the Project has worked closely with the County's Registrar of Voters to ensure that the consent decree was fully implemented. The Project has subsequently worked with the San Francisco Department of Elections to improve its compliance with the bilingual voting assistance provisions of the Voting Rights Act.
back to top
Immigrant Workers' Rights Project
The Immigrant Workers' Rights Project advocates for the civil and workplace rights of low-wage, immigrant workers in the United States. As part of its overall work in this area, the Project has a strong focus on fighting abuse and exploitation by unscrupulous employers of immigrant workers who are present in the United States without documentation. Through litigation and policy advocacy, coalition partnering, and technical assistance to others in the immigrant rights community, the Project works to solidify and expand the protections available to immigrants against many forms of workplace injustice. Among others, these include workplace discrimination, employer retaliation against workers who stand up for their legal rights, and modern-day involuntary servitude.
Project Services:
- Litigation: The Project litigates cases with the potential to establish favorable legal precedent for immigrant workers. These cases are identified in many ways, including the Workers' Rights Clinics, the Project's work with other immigrant worker advocates, and referrals from outside attorneys.
- Policy and Legislative Advocacy: The Project works closely with other immigrant rights advocates on particular issues of importance that arise in these forums, both in California and nationally.
- Technical Assistance: The Project provides advice, referrals, and guidance to immigrant rights' advocates and organizations around the country. To assist legal advocates, links to many of the briefs and decisions from our current and past cases are provided below.
Significant Cases:
Rivera, et al., v. NIBCO, Inc.: This is a discrimination case challenging a employer's use of an English proficiency test to lay off several dozen Latina and Southeast Asian workers (see Rivera case summary under the listing of cases and projects of the Language Rights Project. In the course of litigation, defense counsel attempted to question the plaintiffs about their immigration status, even though this information was intrusive, invasive, and irrelevant to the case. In a precedent-setting decision, a magistrate judge of the U.S. District Court for the Eastern District of California granted a protective order to block those invasive inquiries, agreeing with the plaintiffs that such questioning would have a powerfully chilling effect upon their willingness and ability to assert their rights under Title VII. This ruling was affirmed by U.S. District Judge Anthony W. Ishii. In April 2004, the protective order was reaffirmed by the U.S. Court of Appeals for the Ninth Circuit. Rivera, et al. v NIBCO, Inc., 364 F.3d 1057 (9th Cir.), rehearing en banc denied, 384 F.3d 822 (2004). In March 2005, the U.S. Supreme Court denied certiorari, thereby allowing the Ninth Circuit's decision to become established law. ___ U.S. ___, 2005 WL 517010, 73 USLW 3415 (U.S. Mar. 7, 2005).
To read the text of the Ninth Circuit decision, click here.
In this precedent-setting opinion with nationwide ramifications, the Ninth Circuit ruled that the 23 immigrant workers could not be forced to submit to defense inquiries regarding their immigration status. It rejected the employer's claim that it was entitled to this information, observing that "the chilling effect that the disclosure of plaintiffs' immigration status could have upon their ability to effectuate their rights ... outweighed NIBCO's interests in obtaining the information." Were such discovery to be permitted, the court wrote, "countless acts of illegal and reprehensible conduct would go unreported."
Our co-counsel in this case are Asian Law Caucus
(www.asianlawcaucus.org), Law Offices of Minami Lew & Tamaki LLP
(www.mltsf.com), National Immigration Law Center
(www.nilc.org), and Law Offices of Richtel & Smith
(richtelsmith.lawoffice.com).
To review some of the briefs filed in the Rivera case, see the links below
(listed in chronological order). Many of these links will take you to the
website of our co-counsel, the National Immigration Law Center (NILC) .
Prior decisions issued in the Rivera case: (Note: You must have a Westlaw
account in order to access these links.)
Singh v. Charanjit Jutla, Davinder Jutla, and C.D. & R's Oil, Inc.: The LAS-ELC represents Macan Singh, a formerly undocumented immigrant worker from India whose former employer called the INS after Mr. Singh had begun legal action to recover nearly $70,000 in wages that the employer - his own uncle - owed him. As a result of that call, Mr. Singh spent over 15 months in INS detention before finally winning his release on bond. In December 2003, the case was tried before a federal jury, which found that the defendants had violated the federal Fair Labor Standards Act by making their retaliatory call to the INS, and awarded Mr. Singh a total of $200,000 in compensatory and punitive damages.
Deportation, or the threat of it, is an enormous deterrent to the willingness of immigrant workers - both documented and undocumented - to assert their workplace rights, as Mr. Singh did. This case and its precedent-setting outcome vindicates the rights of those workers to be free from retaliation.
Earlier in the Singh litigation, Mr. Singh won an important victory when U.S. District Judge Charles R. Breyer rejected the employer's claim that the United States Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB (2002) prevented this case from proceeding. (In Hoffman, the Supreme Court had ruled against the National Labor Relations Board in finding that a worker who was illegally fired for union organizing could not collect back pay because of his undocumented status.) In a precedent-setting ruling that sharply limited Hoffman's scope, Judge Breyer concluded, "Prohibiting plaintiff from bringing this claim...would provide a perverse economic incentive to employers to seek out and knowingly hire illegal workers, as defendant did here, in direct contravention of immigration laws." Singh v. Jutla, 214 F.Supp.2d 1056 (N.D. Cal. 2002) To read the text of that decision, click here. (Note: You must have a Westlaw account to access this link.)
The LAS-ELC is co-counsel in this case with Morgan, Lewis & Bockius LLP (www.morganlewis.com) and the National Immigration Law Center (www.nilc.org). Post-trial proceedings are underway.
Contreras v. Corinthian Vigor Insurance Brokerage, Inc.: This case arose when Silvia Contreras, who had left her employment as a secretary due to nonpayment of wages and intolerable working conditions, filed a claim for wages owed with the California Labor Commissioner. Immediately after her first hearing, she was detained and arrested by the INS based upon a retaliatory "tip" phoned in to it by her former employer. Represented by the LAS-ELC, Ms. Contreras filed an action against the employer under the anti-retaliation provisions of the federal Fair Labor Standards Act ("FLSA"). Shortly thereafter, U.S. District Judge Samuel Conti of the Northern District of California issued a landmark decision holding that even though the Immigration Reform and Control Act made unlawful the employment of undocumented workers, Ms. Contreras and all workers like her are nonetheless fully covered by the FLSA's protections against retaliation, and are entitled to the same range of remedies (including punitive damages) as all other workers. In subsequently granting the plaintiff's motion for summary judgment, the Court found - again, for the first time by any federal court - that the reporting of a former worker to the INS constitutes an "adverse employment action" for purposes of a retaliation claim, even though that worker might not have a formal legal right to seek future employment in the United States. Finally, in an order awarding Ms. Contreras damages, the court held that - despite her undocumented status at the time of her arrest and detention - she was nonetheless entitled to recover a full panoply of remedies, including compensatory and punitive damages, something no other court had ever held. To read the decisions issued in this case, click on the links below. (Note: You must have a Westlaw account to access these links.)
back to top
National Origin Discrimination
The general focus of the LAS-ELC's work in this area is that of combating the many forms of discrimination that fall disproportionately upon persons whose national origin - that is, their places of birth, or that of their families and ancestors - is someplace outside the United States. (Those persons also include members of indigenous communities within the United States, such as Native Americans or native Hawaiians). The term "national origin discrimination" is generally interpreted by the courts to include discrimination against Latina/os, persons of Asian Pacific Islander descent, and others from discrete national, ethnic, and cultural backgrounds.
Program Services:
- Legal Advice and Counseling: Through the LAS-ELC's workers' rights clinics and public education materials, the National Origin Program provides limited legal services to persons who believe that have been subjected to national origin discrimination.
- Litigation: The National Origin Program litigates cases that, if successful, will result in favorable legal precedent for national origin minority workers or, through class actions or broad injunctive relief, will have a significant impact upon the entire community of workers affected.
See also services available under the Immigrant Workers' Rights Project and Language Rights Project.
Significant Cases:
Brionez v. U.S. Department of Agriculture, et al.: In this federal class action case brought under Title VII, the LAS-ELC, along with MALDEF and Heller, Ehrman, White & McAuliffe, represents a class of Latino employees of the Pacific Southwest Region of the U.S. Forest Service who have been systematically denied hiring and promotional opportunities, as well as subjected to harassment and retaliatory personnel actions, on account of their Latino national origin. On October 18, 2002, U.S. District Judge Claudia Wilken approved a class settlement of this case. The settlement includes, among other things, a mandate that Region 5 use all means at its disposal, including aggressive outreach and expanded hiring powers outside the federal personnel system, to bring Latino representation in key Forest Service job categories up to par with that in the California civilian labor force. The settlement establishes a minimum period of three years during which the Region's progress toward that goal will be overseen by the Court, LAS-ELC, and MALDEF with the assistance of a Court-appointed monitor.
Tracy v. Yellow Cab Co-Operative, Inc.: The LAS-ELC filed this case in 1991 against the major taxicab companies in San Francisco, in a challenge to their decades-old practice of misclassifying their drivers as "independent contractors" as a way of avoiding liability for such statutory employment benefits as unemployment insurance and workers' compensation benefits, or to evade complying with sections of the California Labor Code. Because of this misclassification strategy, thousands of taxicab drivers had systematically been denied urgently needed financial coverage for serious injuries suffered on the job, or the security of an unemployment check when they fell out of work. After years of litigation, Judge William Cahill of the San Francisco Superior Court agreed with the Tracy plaintiffs that the companies' "independent contractor" fiction was an unlawful and unfair business practice under the California Business and Professions Code. Accordingly, the Court ordered the defendants to provide restitution to the class of their former and current drivers, and imposed a permanent injunction against their misclassification practices.
Although Tracy did not involve a claim of national origin discrimination, a very large proportion of the taxicab drivers subjected to the companies' misclassification was comprised of recent immigrants. As is commonly known, the taxicab industry has historically served as an important and accessible way of making a living (albeit often at a subsistence level) for newcomers to this country. The outcome in Tracy is additionally important to the work of the National Origin Program because the same "independent contractor" fiction is widely used by employers to escape liability for their workplace violations in low-wage jobs most frequently occupied by immigrant workers - such as garment and electronics "sweatshops," and in the janitorial industry. The legal arguments used in Tracy will have great applicability to other such cases where immigrant worker communities are particularly affected.
Walker v. Safeway Inc.: In this case, which was filed in the U.S. District Court in San Francisco in 1998, the LAS-ELC alleged that an African-American man was denied the opportunity for permanent employment as a mailroom worker when he refused to cut off his dreadlocks as a condition of that job - despite the fact that his employers rated his work performance as excellent. This case was successfully settled.
Walker was formally a race discrimination case filed under Title VII. Nonetheless, it is significant from a national origin perspective in that it highlighted employers' use of practices that are not expressly based on race or national origin, but which target important manifestations of one's race or national origin - in this case, the wearing of natural dreadlocks, which is virtually without exception unique to persons of African heritage. Obviously, such forms of discrimination fall most heavily on those national origin communities associated with that characteristic. Yet employers often argue that this kind of discrimination is actually permissible if the affected employees have the ability to eliminate the "trait" in question - a defense which is frequently raised in national origin discrimination cases, especially including language discrimination cases. Walker and cases like it, however, demonstrate that such practices can be successfully challenged through well-established legal categories.
See also services available under the Immigrant Workers' Rights Project and Language Rights Project.
If you have a complaint and believe you fall into the category of workers the Immigrant Workers' Rights Project seeks to serve, you may call for information about one of the LAS-ELC's Workers' Rights Clinics at (415) 864-8208, to determine if a referral is appropriate.
|
|
