Articles Posted in National Origin Discrimination

People who are not United States citizens or lawful permanent residents, and who lack official authorization to be in the U.S., are often referred to as undocumented immigrants—as well as a variety of less polite terms. Although undocumented immigrants are not officially allowed to live or work in the U.S., they may still be able to avail themselves of the protections of certain federal, state, and local laws. New Jersey courts have held that undocumented immigrants have standing to sue an employer under some laws, but not others. A recent federal appellate court ruling could affect these precedents. A court ruled that the Equal Employment Opportunity Commission (EEOC) has the authority to subpoena employment records in connection with an undocumented immigrant’s discrimination complaint under Title VII of the Civil Rights Act of 1964. EEOC v. Maritime Autowash, Inc., No. 15-1947, slip op. (4th Cir., Apr. 25, 2016).

The Constitution gives the federal government exclusive authority over immigration law and policy, including official determinations of an immigrant’s status and work authorization for immigrants. Employers are prohibited from recruiting, hiring, or employing anyone who lacks work authorization. 8 U.S.C. § 1324a. They must verify every employee’s work eligibility by collecting documentary proof that they are a U.S. citizen, a lawful permanent resident, or an authorized visa holder.

Federal immigration law includes employment discrimination provisions, but they specifically exclude people who lack work authorization. 8 U.S.C. § 1324b(a)(3). In determining whether a particular employment statute applies to undocumented immigrants, courts often look at whether the statute expressly limits its coverage to individuals with work authorization, or otherwise excludes undocumented immigrants.

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Title VII of the Civil Rights Act of 1964 is not the only federal statute that protects employees from discrimination in the workplace. The Immigration and Nationality Act (INA), which was first enacted in 1952, prohibits employers from discriminating on the basis of “national origin” and “citizenship status.” 8 U.S.C. § 1324b. Those two terms have specific meanings in this context. The U.S. Department of Justice (DOJ) enforces these provisions through its Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), and the Office of the Chief Administrative Hearing Officer (OCAHO) adjudicates claims. In late 2015, the OSC issued an opinion letter addressing questions about the extent of the INA’s anti-discrimination protections.

The INA prohibits discrimination in hiring, recruitment, and firing of individuals based on their national origin. It also prohibits discrimination in these areas on the basis of citizenship status, but only for “protected individuals,” whom it defines to include U.S. citizens, individuals who have recently attained lawful permanent resident status (i.e., a “green card”), and people who have been granted official status as refugees or asylees. 8 U.S.C. § 1324b(a)(3). These provisions are much narrower in scope than those of Title VII.

The INA states that its prohibition against national origin discrimination does not apply if the alleged discriminatory act violates Title VII’s provisions on national origin, meaning there is not intended to be any overlap between the INA and Title VII. Id. at § 1324b(a)(2)(B). The prohibition on discrimination based on citizenship only applies to “protected individuals,” as defined above, and it does not apply if an employer prefers to employ a U.S. citizen or national over an equally qualified non-citizen. Id. at 1324b(a)(4).

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A federal judge in New Jersey recently denied the defendants’ motion to dismiss a lawsuit alleging race and national origin discrimination. A former employee, who worked for nearly two decades as a contract employee for a federal agency, is claiming that the agency wrongfully failed to hire him for a permanent position. Suri v. Fox, et al., No. 1:13-cv-05036, 2nd am. complaint (D.N.J., Apr. 16, 2014). After the defendants moved to dismiss the lawsuit, the court ruled that the plaintiff had made a prima facie case for race and national origin discrimination. This means that the case may proceed, and that the burden shifts to the defendants to show a non-discriminatory basis for their actions.

The plaintiff, who is originally from India, became a U.S. citizen in 1992. He has bachelor’s and master’s degrees in electrical engineering and a master’s degree in environmental engineering. He began working for the Federal Aviation Administration (FAA) as a summer intern in 1995. During the internship, he states that he asked about a permanent position but was told that a hiring freeze prevented the FAA from offering him a permanent job. He accepted a contract position with H-Tec Systems, an FAA contractor, when his internship ended in September 1995. He continued working on site at the FAA’s William J. Hughes Technical Center in Atlantic City, New Jersey for 13 years. In 2008, he took a job with another contractor, EIT, that kept him in the same place.

According to his complaint, the plaintiff worked with FAA employees on a daily basis, had an office cubicle at the FAA facility, and used office equipment, supplies, and furniture provided by the FAA. The details of his employment, including work assignments, discipline, and leave, were under the control of FAA supervisors. He claims that he continued to ask about a permanent position and was still told about a hiring freeze. The supervisor who cited the hiring freeze, however, allegedly hired several Caucasian employees with lesser qualifications than the plaintiff to permanent positions during this time period. At various other times, the plaintiff claims that employees with lesser qualifications and less seniority than him, all Caucasians, were placed in positions over him.
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Federal immigration law requires employers to verify the employment eligibility of their workers. It also, however, prohibits them from discriminating on the basis of national origin or citizenship status, provided that the employee is not an undocumented immigrant. The Department of Justice (DOJ), through its Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, recently offered guidance for employers regarding internal audits or other inquiries into employees’ work eligibility beyond that required by law. Any sort of employment eligibility verification policies applied unevenly or inconsistently could lead to liability under federal immigration law.

Employers are prohibited from employing unauthorized workers, and are required to verify that all employees and new hires are authorized to work in the United States. 8 U.S.C. § 1324a. Knowingly hiring or employing an unauthorized worker, which could be an undocumented immigrant or someone with a visa that does not allow employment, could result in civil or criminal penalties. Immigration authorities have created Form I-9, the Employment Eligibility Verification form, to enable employers to verify work authorization. An employee or new hire must present certain documents establishing their identity and their employment authorization. The employer is only required to examine the employee’s document and attest that it “reasonably appears on its face to be genuine.” Id. at § 1324a(b)(1)(A).

Federal immigration law also prohibits most employers from discriminating based on national origin or citizenship status. 8 U.S.C. § 1324b. It is not considered unlawful discrimination under this statute for an employer to prefer equally-qualified U.S. citizens over noncitizens with regard to hiring or recruiting. It is, however, considered unlawful discrimination for an employer to require a noncitizen to provide more or different documents than a citizen to complete Form I-9, or to refuse to accept certain documents that reasonably appear valid solely because the person is not a U.S. citizen. Id. at § 1324b(a)(6).
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The New York City Police Department (NYPD) issued an anti-bias message alert that warned sergeants and lieutenants about harassment or discrimination against red-haired officers. The story, reported in the New York Post, has met with mostly bemused responses from people who do not feel that redheads are a particularly disadvantaged group in the United States right now. It raises the question of exactly where hair color falls within the law of employment discrimination. To the extent that hair color is seen as an indication of race, ethnicity, or national origin, it could give rise to a claim for unlawful employment discrimination. The U.S. Supreme has never addressed the question directly, but lower courts have considered the role of hair color and other physical attributes.

According to the New York Post, no lawsuits against the city have alleged employment discrimination based on red hair. Officers quoted in the Post‘s story say they have “endured years of ridicule,” but none seemed to think that it rose to the level of actionable discrimination or harassment. From a legal standpoint, however, red hair could be a protected category if an employment practice had a significantly disparate impact on redheads. The Post article also quoted red-haired British model Lily Cole, who suggested that bias against redheads may be a bigger problem in the United Kingdom.
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