The New Jersey Employment Law Firm Blog
Federal law prohibits employers from discriminating against employees and job seekers on the basis of a variety of factors. Race, sex, and religion might be the most well-known categories protected by federal employment antidiscrimination law, but they are not the only ones. In addition to those three, Title VII of the Civil Rights Act of 1964 also bars discrimination based on color and national origin. Other federal statutes address discrimination on the basis of age, disability, and genetic information. The Immigration and Nationality Act (INA) of 1952 states that employers may not discriminate against employees and job applicants on the basis of national origin or citizenship status, provided that they are authorized to work in the U.S. Earlier this year, the U.S. Department of Justice (DOJ) announced that it had settled immigration discrimination claims against two New Jersey employers. If you have concerns about discriminatory practices in the workplace, reach out to a New Jersey employment discrimination lawyer as soon as possible.
Immigration law in the U.S. is quite complicated. In overly-simplified terms, people present in the U.S. can be described as belonging to one of five groups:
1. U.S. citizens;
2. Lawful permanent residents;
3. Nonimmigrant visa holders with employment authorization;
4. Nonimmigrant visa holders without employment authorization; and
5. Undocumented immigrants.
People enrolled in programs like Deferred Action for Childhood Arrivals (DACA) do not quite fit into these categories, since they may be authorized to work despite being considered undocumented. The key factor in the INA’s employment discrimination provisions is whether an individual can legally work in the U.S.
The INA states that employers with three or more employees may not discriminate on the basis of national origin or citizenship, with the exception that they may “prefer equally qualified citizens” over non-citizens. It is also unlawful for an employer to require “more or different documents” than those required to prove employment authorization under the INA, or to refuse to accept seemingly valid documents. Individuals may file a discrimination complaint with the DOJ. They may not, however, file a complaint of national origin discrimination with the DOJ if they have already filed a Title VII complaint with the Equal Employment Opportunity Commission alleging national origin discrimination.
The DOJ brought claims against two employers in New Jersey for alleged discrimination based on citizenship status. In both cases, the DOJ’s investigations found that the employers required job applicants and employees to prove work authorization with different documents than those required by the INA, or with specific documents. Job applicants and employees may choose from a list of acceptable documents, provided by the federal government, that can establish their identity and their right to work. Employers may not specify which documents they will accept. The DOJ concluded that the employers often only required noncitizen employees and applicants to meet these additional documentation requirements.
Both settlements require the employers to pay a civil penalty to the DOJ. They must both refrain from further policies or actions that violate the INA, and they must place an “If You Have The Right to Work” poster in both English and Spanish in their workplaces. One of the employers must also pay more than $35,000 in back pay to an employee impacted by the discriminatory policy.
The employment attorneys at the Resnick Law Group advocate for the rights of employees, former employees, and job applicants in New Jersey and New York. To schedule a confidential consultation to see how we can help you with your case, please contact us today online, at 973-781-1204, or at 646-867-7997.