Immigration status discrimination, also sometimes referred to as citizenship discrimination or national origin discrimination, happens when an employer treats an employee or applicant differently based on their citizenship or immigration status. It can also occur when employers demand excessive documentation or specific documentation of prospective employees’ right to work in the U.S. People who are U.S. citizens, permanent residents, asylees, and refugees are legally protected against immigration status discrimination under federal law.
Recently, the U.S. Department of Justice announced a settlement agreement with a fast food chain franchisee allegedly committing immigration status discrimination in Southern California. According to a DOJ news release, the franchisee in question owned four restaurants in Southern California. The investigation indicated the company discriminated against non-U.S. citizens during the hiring process when verifying their permission to work in the country.
Companies are not allowed to treat people differently in hiring, firing, recruitment, or referral for a fee because of either their citizenship status or national origin. Federal law (specifically 8 U.S.C. § 1324b(a)(6) ) prohibits employers from discriminating against workers by demanding more documents than necessary – or specific documents – to prove their permission to work, immigration status, or national origin. Workers have the right to choose which valid, acceptable documents they want to provide when establishing their permission to work in the U.S.
This investigation was launched after a complaint from a prospective employee (native to another country) asserted the company refused to accept his valid documents proving his permission to work. The fast food franchise demanded he provide different documentation. The DOJ launched an investigation, and discovered the company routinely engaged in discrimination against non-U.S. residents. In particular, their discrimination was against lawful private residents. These individuals were reportedly refused employment until they provided an extensive (DOJ would say excessive and unnecessary) among of documentation.
All employers should be educated about the fact that the Immigration and Nationality Act’s anti-discrimination provision bars employers from requesting more records than necessary (or specifying the type of documents workers should present).
The DOJ ultimately reached a settlement with the franchise company, compelling payment of a $40,000 civil penalty to the U.S. government, back pay for lost wages to the worker who initially complained, and a review/revision to employment policies to ensure they are in compliance with federal law. It also agreed to train employees responsible for verification of workers’ permission to work in the country in the specifics of INA and its provisions.
U.S. Laws that Protect Immigrant Workers
As far as U.S. laws that protect immigration workers, in addition to the INA, there is the Immigration Control and Reform Act of 1986. This law makes it illegal for employers to discriminate on the basis of national origin or citizenship in hiring, firing (including layoffs), recruitment, or referral for fee. It makes it illegal for employers to refuse to honor right to work documents if they are legally acceptable and appear to be genuine. Further, it bans coercion, intimidation, threats, or retaliation against anyone who complains of an IRCA violation or cooperates with an IRCA investigation.
Examples of IRCA violations include:
- Refusal to hire an immigrant because “we only hire U.S. citizens to do certain jobs.”
- Refusal to employ a temporary resident with work authorization because they’d rather “avoid the hassle of filling out all that paperwork.”
- Employers demanding that Latino, Asian, or Muslim employees provide copies of work authorization papers, while not asking for similar records from Caucasian or African American workers.
- Employer demanding a copy of one’s green card, despite being provided a driver’s license and Social Security card. (Such documentation is not necessary to fill out an I-9 form.)
- Temp agency refuses to refer a qualified immigrant worker because an employer has specified they only want to hire U.S. citizens.
Also, if two non-citizens have differing immigration statuses, employers can’t favor one over the other, such as a permanent resident over a temporary resident with a work authorization.
Immigration status discrimination is also unlawful under Title VII of the Civil Rights Act of 1964. Specifically, this federal law bars employment discrimination on the basis of race, color, or national origin – all of which may fall into the category of immigration discrimination.
There is also the Workforce Investment Act of 1998 (specifically, Section 188), which bans discrimination against applicants, employees, and participates in Title I financially-assisted programs and activities, and programs that are part of the One-Stop system, on the grounds of national origin.\
While Title VII covers workers with 15 or more employees, both the INA and the IRCA cover workplaces between 4 and 14 employees. Executive Order 11246 prohibits federal contractors and subcontractors from discriminating against their workers.
If you have been discriminated against on the basis of your national origin, color, race, religion, or immigration status, our dedicated San Bernardino employment attorneys can help.
Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.
UNDERSTANDING THE INA’S ANTI-DISCRIMINATION PROVISION, DOJ
More Blog Entries:
California Staffing Agency Liability for Workplace Discrimination, April 15, 2022, San Bernadino Employment Attorney Blog