Avoid Immigration Status Discrimination–or Face the Feds 14:44, June 9, 2017

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Avoid Immigration Status Discrimination–or Face the Feds

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The latest high-profile raids against illegal immigrants have created uncertainty about the consequences of new federal policies (and state laws) on immigration for many employers. “Immigration arrests up 38% nationwide under Trump,” and “Immigration Arrests Rise Sharply as a Trump Mandate Is Carried Out,” read typical headlines (from USA Today and the New York Times, respectively). The Society of Human Resource Management (SHRM) warns about potential future immigration raids on employers, and about possible compliance challenges for HR (for example, if California AB 450 becomes law). 

What’s easy to forget in the current informational dust storm is that massive employment raids are mere predictions, not reality. The first linked SHRM article above, for example, quotes attorney Andrew Greenfield as saying that increased workplace raids are unlikely because they “can be a PR [public relations] nightmare for the government.”

Regardless of these predicted and real events, the anti-discrimination laws that protect workers from preferential treatment based on their national origin, citizenship, or immigration status remain in force and the authorities continue to enforce them as vigorously as ever. To comply with the law as it stands right now, employers should stop guessing and start doing.

National Origin & Immigration Status Discrimination

Employers must not discriminate based on employees’ protected characteristics, including national origin. For example, employers can’t treat workers differently because of their place of birth, country of origin, ancestry, native language, accent, or because they seem to look  or sound “foreign.” They also must not discriminate based on a worker’s citizenship or immigration status. This means, among other things, that employers cannot hire, fire, recruit, or enter into fee agreements to refer workers based on national origin or a preference for US citizens or natives (or for non-citizens or immigrants).  

8 USC § 1324b of the Immigration and Nationality Act expressly forbids these practices, and the Immigrant and Employee Rights Section (IER) of the Department of Justice’s Civil Rights Division enforces this law. The federal Equal Employment Opportunity Commission (EEOC) and similar state agencies enforce the laws against national origin discrimination and other immigration-related forms of discrimination. The EEOC and the IER have an agreement to refer appropriate cases to one another for enforcement.

Title VII (which the EEOC enforces) offers greater worker protections than the Immigration and Nationality Act. The Act protects any employee who’s authorized to work in the US, but prohibits employers from hiring anyone who is not work-authorized. In contrast, Title VII prohibits discrimination based on a protected characteristic even if the victim is not legally authorized to work in the US.

IER Enforcement Actions

Recent enforcement actions bear out the continued importance of avoiding immigration-related discrimination. Since Congress confirmed Jeff Sessions as Attorney General in early February of 2017, six of the seven immigration-related DOJ enforcement actions resulting in settlements involved discrimination against non-US citizens. The other one, announced May 23, 2017, involved discrimination against US citizens. Looking back a year to date starting on May 23, 2017 (also the date of the IER’s latest settlement as of this writing), only one other settlement involved discrimination against US citizens, among 19 total immigration-related settlements.  

Most of the settlements involving non-US citizens centered on employers who insisted that employees produce certain work-authorization or identification documents that were not required by law. All of the settlements required both monetary payouts and increased compliance and government monitoring obligations, including employee training.

The May 23, 2017 settlement hinged on a company’s misuse of the H-2A visa program, which allows employers to hire foreign seasonal farm workers when there’s a worker shortage. Instead, according to the DOJ, the employers used the visa program as part of a hiring preference for foreign workers, and denied jobs to US citizens based on their citizenship status. The employer settled for $44,000.

The other one, which settled for $52,000 on January 17, 2017 (before President Trump’s inauguration), resolved similar charges of misusing a visa program to discriminate against US citizens and other work-authorized individuals. In this case, the CW-1 visa program permits employers in the Commonwealth of the Northern Mariana Islands to hire temporary foreign workers only if no qualified local workers are available.

In other words, in the last year, the only DOJ settlements of US citizenship discrimination charges have focused on employers that abuse visa programs they should resort to only when no US or local workers can do the job. It is illegal to use these visas to hire foreign workers when US or local workers are authorized to work and available.

On the other side of the coin, it’s also generally illegal to prefer US citizens over non-citizens in employment. For example, the DOJ settled a case in September of 2016 to resolve charges that a temp agency had advertised that applicants for a machinist position at a client company had to present a US birth certificate. There was no legal reason that a mechanist had to be US-born.

The above cases stand out for being a little unusual. On May 17, 2017, the DOJ settled a more typical (but still unfortunate) case of discrimination, in which a multi-state company demanded that permanent residents prove their work authorization by producing Permanent Resident Cards (“Green Cards”), but did not demand that US citizens produce any specific document. This practice allegedly went on for three years. To resolve the charges, the DOJ required a $225,750 payout, among other compliance obligations. While the law requires new hires to produce documentation showing that they can work in the US, employers must allow them to choose from a list of acceptable documents. Employers can’t limit the kinds of documents they’ll accept beyond what the law provides.

EEOC Enforcement Actions

The EEOC also actively pursues cases of national origination discrimination. For example, in July of 2016 the agency settled a case for $205,000 against a company that allegedly engaged in a “pattern or practice of unlawfully terminating qualified American and/or African-American workers and replacing them with foreign-born workers.”  In March of 2017, the EEOC required a custom metal and HVAC company to pay $325,000 to resolve charges that the employer “allow[ed] its white employees to verbally harass and threaten a black employee of Puerto Rican origin, which ultimately led to a brutal physical assault.”  Similar to the DOJ, the EEOC requires increased compliance, government monitoring, and training as part of most settlements. In one case, the EEOC required managers of a condo complex to undergo twelve hours of annual training to settle charges that a housekeeping manager sexually harassed Mexican female employees by exploiting their fear of deportation.

A Pervasive Problem

Regardless of the prevalence of discrimination against non-citizens, citizens, or any other immigration status or national origin, the principle is the same: unless there’s a specific law or regulation requiring otherwise (e.g., work authorization requirements), employers must continue to treat workers the same regardless of their national origin, or of their citizenship or immigration status.

If anything, employers now need to be more cautious to avoid these forms of discrimination. If the EEOC’s numbers are any indication, there’s been little change in the percentage of national origin discrimination cases over the last twelve years. In fiscal years 2004 through 2016, about 11 percent of EEOC charges alleged national origin discrimination. That number has not been below 10 percent since 2001.

Employers that need more tips on how to avoid these forms of discrimination, including additional examples of what to do and not to do, can consult the EEOC Enforcement Guidance on National Origin Discrimination and the DOJ’s fact sheet, Citizenship/Immigration Status and National Origin Discrimination in Employment. The former Office of Special Counsel for Immigration-Related Unfair Employment Practices, which published the fact sheet, is now the IER.

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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