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Citizenship Not a Protected Category in Employment

We’ve been contacted by several potential clients in our California employment practice who claim they’ve been discriminated against since they are not citizens of a particular foreign country that is the homeland for their local Los Angeles-based employer. In some cases, a foreign national has been sent over to assume a position of leadership that local residents are not allowed to apply for. Is it legal to prefer foreign nationals to US citizens without running afoul of the laws against national origin and racial discrimination?Surprisingly, in some cases it is perfectly legal. While national origin or ancestry may not be the basis for unlawful discrimination,unlike other categories such as race or sex, citizenship is not  a protected category. In other cases, not being a citizen of the US has been held not to be illegal discrimination. Espinoza vs. Farah MfgCo., 414 US 86, 88 (1979).

In addition to the fact that citizenship may not be used as a basis for a discrimination claim, treaties of certain foreign countries may allow foreign employers to prefer this own citizens for particular jobs. Under the Japanese Friendship, Commerce and Navigation Treaty of 1953 (4 UST 2063), Japanese employers have the discretion to staff their US companies with “accountants and other technical experts, executive personnel, attorneys, agents and other specialists” from Japan. Kirmse ve. Hotel Nikko, 51 CA4th 311 (1996).In some situations, the California employer is actually a domestically incorporated subsidiary of a foreign corporation. May that “local”entity still favor foreign nationals? The courts are split so we’ll have to see. Several California courts have held that the local subsidiary is not entitled to rely on a treaty. (Kirmese vs. HotelNikko, 51 CA4th at 317 (2007). However, at least one federal court (Fortino vs. Quasar, 950 F2d 389, 392 (7th Cir 91) has held that an American subsidiary of a Japanese corporation did not violate Title VII in discharging American executives but retaining foreign nationals.

We’ve written several times in this blog about California’s whistle blower protection statute, Labor Code 1102.5. Recall that this statute protects workers against retaliation for complaining about actual or perceived illegalities in the workplace. This law is not pre-empted by limited treaty rights of employers. Ventress vs. Japan Airlines, 486 F3d 1111,117 (9th Cir 2007).

In conclusion, we’ve received calls claiming discrimination in employment due to the potential client’s accent. Clearly, there is a link in national origin (a protected category) and accent. The 9th Circuit (the federal circuit which includes California) has ruled that an adverse employment action can be engaged in by an employer if it materially interferes with his or her job performance. (Raad vs.Fairbanks North Sar Borough School Dist, 323 F3d 1185, 1195 (9th Cir.2003). In this case, a school district denied a full time position toa substitute teacher based on her accent. The court ruled this was legal.

As always, this blog should be considered educational, not legal, in nature. Legal advise on your case can only be given by an attorney licensed in your jurisdiction and with knowledge of the facts in your case. We practice employment law state-wide in California.