Douglas J. Farmer

Meeting of November 13, 2013 - National Origin Discrimination in Today's Workplace

DOUGLAS J. FARMER is a shareholder, and former managing shareholder, of the San Francisco office of Ogletree, Deakins, Nash, Smoak & Stewart, one of the nation's largest management side employment law firms, with offices in more than 45 cities throughout the United States and Europe. He received his law degree from Harvard Law School (J.D., 1986), his undergraduate degree from Harvard College (A.B., magna cum laude, 1982), and served as a Rotary Graduate Scholar at the Universidad Nacional Autonoma de Mexico (Mexico City, 1982-83). He is a former Trial Attorney for the United States Equal Employment Opportunity Commission (EEOC), where he litigated migrant worker and language rights cases in California's Central Valley on behalf of the agency's San Francisco District Office. He is fluent in Spanish.

For nearly 25 years, Mr. Farmer has provided strategic advice and counsel to management in employment law matters, and currently represents employers large and small in wrongful termination and class action litigation. He has tried to verdict a broad range of employment cases in state and federal courts for both the EEOC and private sector employers, including sexual harassment, age discrimination, pregnancy discrimination, disability discrimination, wage and hour actions, and other claims.

Mr. Farmer has been recognized as one of California's leading employment lawyers in Chambers USA, America's Leading Business Lawyers, and multiple times as a "Super Lawyer" by the publishers of Northern California Super Lawyers Magazine, a recognition based on peer reviews and professional achievement limited to five percent of all California lawyers. He lectures frequently on employment law topics throughout the United States, and is the author of California Employment Law-The Complete Survival Guide to Doing Business in California (www.EmploymentLawPublishers.com), a widely acclaimed 1200 page treatise for in-house counsel and human resources executives.

National Origin Discrimination Experience

For nearly 25 years, Mr. Farmer's law practice has focused on the representation of employers in industries comprised of limited-English speaking and non-English speaking workers. These industries include warehousing and logistics, food production, manufacturing, and agriculture. He provides day-to-day advice to employers on matters that include:

• Compliance with state and federal laws governing restrictions on the use of foreign language in the workplace;
• The creation of effective complaint procedures (discrimination, harassment, wage/hour) for non-English speaking workforces;
• Interpretation of state laws requiring foreign language translation of legally required notices, postings, and employee handbook policies;
• Development of anti-harassment/discrimination training programs for non-English speaking workforces (including the program utilized pursuant to consent decree in EEOC v. Tanimura & Antle, a widely publicized sexual harassment pattern and practice case resulting in one of the Commission's largest harassment settlements of its kind); and,
• Immigration-related employment practices giving rise to national origin discrimination under federal and state anti-discrimination laws.

Mr. Farmer held responsibility for the following litigation matters on behalf of the EEOC before leaving the Commission in 1992 to enter private practice:

• EEOC/Castrejon v. Tortilleria La Mejor. A case of first impression addressing the issue of whether undocumented workers could assert Title VII coverage after passage of the employer sanctions provisions of the Immigration Reform and Control Act (IRCA). The defense argued that a woman fired from her job based on her pregnancy could not assert the protections of Title VII because of her undocumented status. The United States District Court for the Eastern District of California ruled in the Commission's favor, effectively affirming post-IRCA Title VII coverage for more than 6 million undocumented workers.
• EEOC v. Continental Telephone. A case of first impression addressing the issue of whether, under Title VII, an employee could refuse to provide Spanish language translation - a defining national origin characteristic - as directed by her employer. The employee, a telemarketer, had been threatened with termination and sent home on a "decision making" leave when she refused to neglect her own job assignments to translate for her non-Spanish speaking coworkers. The employee had previously been disciplined for failing to meet her sales quota. The case paved the way for union contracts throughout the country that now provide pay differentials for bilingual skills.
• Garcia/EEOC v. Spun Steak. An "English-only" rule case under Title VII. Mr. Farmer successfully argued the case for EEOC before the United States District Court for the Northern District of California which affirmed application of the Commission's "English-only" regulations and held the employer's English-only rule violated Title VII. The District Court's decision was later overturned by the Ninth Circuit in Garcia v. Spun Steak, 998 F.2d 1480 (9th Cir. 1993).
• EEOC v. Bear Creek. A Title VII class action, disparate impact case (national origin) against a major California grower challenging the termination of hundreds of undocumented workers who sought amnesty under the Immigration Reform and Control Act. When workers disclosed fictitious social security numbers and other documentation required by the program, the employer summarily fired the employees and rehired them at entry level wages with no seniority. The Commission obtained a consent decree reinstating class member seniority and awarding lost wages. The case was instrumental in prohibiting future employer reprisals resulting from mandated disclosure under the Act.