Treating a job applicant or employee unfavorably because of his or her immigration status is a form of unlawful discrimination. U.S. citizens, recent permanent residents, asylees, and refugees are protected from immigration status discrimination, also referred to as citizenship status discrimination.
Immigration status discrimination is frequently linked to national origin discrimination, but they differ in that the latter is largely based on the country of origin or ancestry of the individual, not on their immigration or citizenship status.[1]
The discrimination may occur through employer actions, workplace harassment, or an employment policy, and it is often displayed through abusive requests for paperwork related to a job applicant or employee’s immigration status.
Similar to other types of discriminatory practices, immigration status discrimination may arise in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and other employment setting or condition.
Federal, state and local laws regulating immigration status discrimination
The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), makes it illegal for an employer to discriminate against protected persons with respect to hiring, firing, or recruitment or referral for a fee, based upon an individual’s citizenship or immigration status. It makes it illegal to require more or different documents than those legally acceptable for employment verification purposes; to refuse to honor the documents the employee offers if they are legally acceptable and appear genuine; and it prohibits intimidation, coercion, threats, or retaliation against those who file charges or otherwise cooperate with an investigation, proceeding, or hearing.
Protected persons under IRCA include U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, refugees, and asylees. The Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) is the office responsible for investigating immigration or citizen status discrimination charges under IRCA. The OSC also investigates charges of unlawful employer document request practices such as excessive document request, genuine document rejection, or specific document request (e.g., Alien Registration or “green card”).
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment practices that discriminate against any individual because of such individual’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Title VII protections extend to all persons, regardless of their immigration or citizenship status. This includes undocumented persons. Federal law also prohibits employers from retaliating against individuals who assert their legal rights, even if they are undocumented.[2] The Equal Employment Opportunity Commission (EEOC) is the federal agency overseeing federal laws addressing discrimination on the basis of national origin, as well as the discrimination of undocumented workers on other basis.
At a state level, the Florida Civil Human Rights Act (FCRA) makes it illegal for an employer to discriminate against all persons (including undocumented persons) on the basis of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. The Florida Commission on Human Relations (FCHR) is the state agency overseeing discrimination in Florida.
Who must comply?
Employers with 4 or more employees must comply with the IRCA laws against discrimination based on immigration or citizenship status. Other anti-discrimination federal and state statutes cover employers with 15 or more employees. Additional requirements may be imposed by existing city or county ordinances with similar or more restrictive provisions prohibiting anti-discriminatory practices against all persons (including undocumented persons).
Pre-employment interviews and employment eligibility
Under IRCA, no employer may ask applicants about their citizenship status before the applicant is offered a job. This includes the request of citizenship documentation. In addition, employers may not treat individuals differently based on citizenship or immigration status. Further, an employer may not exclusively hire U.S. citizens or lawful permanent residents unless required to do so by law, regulation, or government contract.
For example, in 2015, the Department of Justice’s OSC found that Miami-Dade Public Schools discriminated when it asked immigrant applicants for employment eligibility documents prior to a job offer, while it did not request the same from other applicants. In this case, Miami-Dade Public Schools agreed to a settlement involving a fine of $90,000, a $125,000 lost wages compensation fund for victims, and anti-discrimination training.
However, an employer may state to an applicant who has been already offered a job that within the first three days of work they will be expected to provide proof that they can legally work in the United States. The Department of Homeland Security (DHS) Form I-9 lists acceptable documents to verify employee eligibility. It is up to the applicant or employee to choose among the listed documents to demonstrate eligibility. An employer may not refuse to accept any lawful documentation provided or demand additional documentation beyond what is required by law.
In addition, no employer may request employees to report when their documents expire and ask them to produce new ones. For example, as part of a 2015 settlement, the restaurant franchise McDonald’s agreed to pay a fine of $355,000 for violating federal anti-discrimination laws when requiring lawful permanent residents to display a new permanent resident card upon expiration of their original document. The company had not levied the same request on U.S. citizen employees who showed documents that later expired. In addition, the company discharged or prevented from working those employees who could not provide new documents. McDonald’s settlement also included a commitment to train its employees, submit to 20 months of compliance monitoring, and compensate victims of its discriminatory practices for lost wages.
While the above practices are forbidden, it is also illegal for an employer to knowingly hire undocumented workers, and criminal liability be imposed on employers who fail to verify a job applicant’s identity and work eligibility. If not properly followed, these legal requirements can trigger implementation of employment practices that turn out to be illegal. Therefore, employers must be careful to develop policies that comply with all legal requirements.
Exceptions from protection
Permanent residents who do not apply for naturalization within six months of eligibility are not protected from immigration status discrimination. In addition, an employer is exempt from the restriction on additional demands for documents in certain circumstances, such as when the requests are necessary, or required by law, regulation, or government contract (e.g., requests for additional documentation to obtain a security clearance.)
Undocumented Workers
Title VII protections extend to undocumented individuals. Other laws, such as the Age Discrimination in Employment Act (ADEA) and the American with Disabilities Act (ADA), afford added protections for undocumented persons against age and disability discrimination, respectively.
In addition, employers may not report or threaten to report an undocumented worker to the Immigration and Nationality Service (INS) in retaliation against the worker’s opposition to unlawful discrimination or their participation in an anti-discrimination hearing or proceeding.
National origin and language, accent-based discrimination
As mentioned earlier, federal law also prohibits discrimination against a person who is from a particular country or part of the world, because of ethnicity or accent, surname, or because they appear to be of a certain ethnic background (even if they are not). [3] Also, employer decisions regarding an employee must not be based on the employee’s foreign accent and language unless the accent materially interferes with job performance. For additional information, please refer to the Language in the Workplace blog article.
Recovery
Recovery under IRCA may include back pay, job offer, and reinstatement. As part of a settlement, the OSC may also require employers to cease their discriminatory practices, pay penalties, and undergo monitoring and training.
Recovery under Title VII and other federal laws may include attorney’s fees, back pay, reinstatement or front pay, compensatory (e.g., emotional distress) and punitive damages. Liquidated damages, interest, and costs may also be available, depending on the claim. In the case of employer retaliation, injunctive relief is also available. In addition, in cases of discrimination within protected areas, Florida state law allows the recovery of punitive damages, injunctive and/or affirmative relief (e.g., to stop the employer’s actions and/or make the injured employee whole). However, the award depends on the type of claim, the individual facts of the case, and how it is pursued.[4]
Undocumented employees may receive damages under the applicable anti-discrimination federal law depending on the type of discrimination suffered, but damages for back pay and reinstatement may be limited.
Processing a Discrimination Claim
For employers with 4 and 14 employees, a claimant must file an immigration status discrimination charge with the OSC within 180 days from the date the discrimination took place. Due to the specific processes that must be followed and the applicable time limits for agency and court filing, it is in an employee’s or applicant’s best interest to become informed, including engaging the assistance of an attorney to assist in their discrimination matter. An employer facing the defense of a discrimination claim should engage legal counsel to prepare for forthcoming administrative inquiries and potential sanctions, including litigation. (For more information on processing and managing a discrimination claim, see the Processing Claims with the EEOC and Processing Claims with the FCHR blog articles.)
Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a national origin discrimination situation and offer legal representation, if necessary. Click here to contact an attorney now.
[1] See Discrimination on the Basis of National Origin blog article for more information.
[2] The topic of retaliation is addressed in more detail in the Whistleblower Laws, Whistleblower Protection Act, and False Claims Act blog articles.
[3] See Discrimination on the Basis of National Origin blog article for more information.
[4] For additional information, please refer to the Damages in Discrimination Claims blog article.