Anti-Discrimination Protections for Immigrants
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What is the Immigration and Nationality Act (INA)?
The Immigration and Nationality Act (INA) is a federal immigration law that requires employers to hire only employers with proper work authorization. However, INA also contains anti-discrimination provisions that reach out to protect employees. The Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) enforces INA anti-discrimination provision and their alleged violations.
What is Prohibited Under the Immigration a?
The INA anti-discrimination protections cover various employment aspects such as recruitment, hiring, and firing decisions. Under the INA, an employer cannot engage in any of the following:
- Discrimination based on citizenship status – employers with at least 4 employees cannot treat US citizens, refugees, residents or refugees differently because of their status. However, this anti-discrimination provision doesn’t reach permanent residents who fail to apply for naturalization within 6 months from becoming eligible.
- Discriminate based on national origin – employers with at least 3 but no more than 15 employees cannot treat persons differently because of the actual or perceived nationality, country of origin, ancestry, or accent. Note, violations by employers with more than 15 employees may also be subject to the Equal Employment Opportunity Commission (EEOC).
- Engage in retaliation or intimidation – employers cannot punish, threaten, or otherwise intimidate individuals for asserting their rights under the anti-discrimination provisions of INA. Such actions as filing a complaint with OSC, testifying in a proceeding, and participating in an investigation are all shielded from reprisals by the employers against whom such actions are taken.
- Engage in document abuse – employers with at least 4 employees cannot subject individuals to different treatment on the basis of citizenship or national origin during employment eligibility verification process. Requesting more documents than Form I-9 requires, refusing to accept valid documents, requesting certain specific documents instead of others, and treating groups of applicants differently during Form I-9 verifications represent typical prohibited unfair document practices.
What are the Consequences of Discrimination?
Employers found in violation of INA anti-discrimination provisions may suffer the following penalties:
- OSC may require the employer to reinstate the employee, which may include providing back pay.
- The court may award attorney’s fees to the employee with the prevailing discrimination claim.
- Civil monetary payments may be collected for discrimination based on citizenship or national origin status as well as document abuse.
Further, employer’s discriminatory practices may also violate Title VII of the Civil Rights Act of 1964, subjecting such employer to the following penalties:
- If Title VII had been violated, compensatory damages for real monetary losses as well as for mental anguish are allowed.
- If an employer had been reckless in violating Title VII, he may be liable for punitive damages.
Anti-Discrimination Laws: How Title VII and INA Interact?
Title VII of the Civil Rights Act of 1964, which is enforce by EEOC, also contains anti-discrimination provisions related to national origin. Under Title VII, EEOC has a broader jurisdiction over discrimination based on national origin. Unlike OSC with its limited reach over smaller employers, EEOC is authorized to investigate larger employers with more than 15 employees. Further, while INA’s prohibition against national origin discrimination is limited to intentional discriminatory acts, Title VII covers intentional as well as unintentional discrimination across a broader set of employment decisions.
Asserting Your INA Rights: How to Complain about Discrimination?
To asserting your rights under the anti-discrimination provisions of INA, you may need to contact OSC, which sends out charge forms and conducts investigations of alleged discrimination. Back pay as well as job relief may be obtained by discriminated employees.
When to Seek an Attorney?
Both employers and employees will benefit from consulting an attorney specializing in immigrant employment laws. the Employer's challenge may be in properly refusing employment to unauthorized workers while ensuring that no applicant is discriminated against based on immigration status. For example, an attorney may help employers understand the fine line between appropriate From I-9 compliance and document abuse.
For employees, it is necessary to seek attorney help since Title VII as well as INA and other laws may be violated. Do not forgo attorney’s help just because you assume your immigration status doesn’t entitle you to equal treatment. An attorney may be able to help you get back your job, back pay, or other relief.
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Last Modified: 08-15-2013 04:36 PM PDT
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