Law Review: Discriminated against for not speaking ‘good English’ | SierraSun.com

Law Review: Discriminated against for not speaking ‘good English’

Jim Porter
Law Review

Employment discrimination remains an ongoing issue for employees: for example, if your employer demotes you because you do not speak “good English” or as a Filipino with a “thick accent.”

‘SPEAKS WITH A THICK ACCENT’

Nancy Ortiz, a registered nurse, worked for Dameron Hospital Association in Stockton for 10 years. She was born in the Philippines and immigrated to the United States. English is her second language. She speaks with a thick accent as the Court of Appeal agreed.

In 2011, Doreen Alvarez became the director of several departments overseeing Ortiz and several other unit coordinators, mostly of Filipino descent. Alvarez had a well-documented history of demeaning Ortiz and other Filipino employees, saying such things as, “those of you with a thick accent, those of you that cannot speak English … need to go back to school and learn how to read and write grammar” (So does Alvarez).

Alvarez told others she wanted to get rid of the Filipino unit coordinators because they were “dumb,” and “didn’t speak English.” At one point, Alvarez asked another employee to write a report that Ortiz had been sleeping on the job. He refused to lie about something he did not see. That employee was terminated.

After Alvarez continued to give Ortiz bad performance evaluations, and because of the stress and anxiety of not wanting to have a termination on her record, she quit.

FAIR EMPLOYMENT AND HOUSING ACT

Under California’s Fair Employment and Housing Act, it is unlawful for an employer to discriminate against an employee in a protected class. Nancy Ortiz sued Dameron Hospital and Doreen Alvarez. The trial court ruled against Ortiz. She appealed to the Third District Court of Appeal.

The Court of Appeal overturned, and upheld most of Ortiz’s claims.

‘I QUIT’ CAN BE WRONGFUL TERMINATION

A question that often comes up in employment cases is can an employee quit and still have a claim against the employer for being wrongfully terminated? The answer is yes if an employer knowingly permits working conditions that are so intolerable that a reasonable employer would realize that a reasonable employee would be compelled to quit.

That conduct is sufficient to establish a “constructive discharge,” at least if the adverse working conditions amount to a “continuous pattern.”

As Alvarez was a “supervisory employee” knowledge of the working conditions she created were held against her and Dameron.

COURT RULING

The Court of Appeal ultimately upheld Ortiz’s harassment/hostile work environment and discrimination claims based on her being Filipino.

The Court allowed Ortiz’s claim for punitive damages against Alvarez but not against Dameron, as Alvarez was not an officer, director or managing agent of Dameron.

Alvarez’s conduct was ruled “despicable and carried out with a willful and conscience disregard for the rights of others, including Ortiz.”

Hard to argue with.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.