Employment law describes a broad range of legal issues associated with employees, employers, and safety conditions in the workplace. Some employment laws may apply to a case involving employment discrimination, while others can be used to provide guidance when drafting company policies or employee handbooks.
The intention of employment law is to protect all of those who are part of the workforce, which may include:
- Establishing protection for employees in workplace disputes
- Ensuring that businesses do not discriminate against prospective job candidates or current employees in the interviewing, hiring, promoting, or terminating process
- Granting rights to individuals who are self-employed or are considered to be independent contractors
- Ensuring that volunteers and interns do not experience sexual harassment, discrimination in the workplace, or retaliation in the workplace
Employment laws can vary widely by jurisdiction. Because of this, the rights that one state may protect may not be available as a protection under the laws of another state. Some issues may be governed by both state and federal employment laws, such as pregnancy leave.
Examples of legal rights for employees include the:
- Right to privacy
- Right to be free from discrimination and workplace harassment
- Right to fair compensation
Many of the rights provided by employment laws address the well-being and safety of employee conditions in the workplace. An example of this would be how the Occupational Safety and Health Administration (“OSHA”) is responsible for enforcing laws and policies that protect employees from dangerous conditions and unsafe work environments.
Employees may also be entitled to leave pursuant to the Family and Medical Leave Act. If an employee suffers an injury at work, they may be entitled to worker’s compensation benefits. Employees may be entitled to additional benefits or different remedies for issues if they are members of a labor union. Additionally, employees may have other legal rights resulting from an employment contract.
Employment discrimination issues may also arise related to an individual’s immigration status. Immigration discrimination occurs when a potential worker or worker is treated unfairly or with prejudice based on their immigration status, national origin or protected status.
National origin discrimination occurs when someone is treated unfavorably because they are from a certain country, have a certain accent or ethnicity, or appear to be of a specific ethnic background. Citizenship status discrimination occurs when an individual is unfairly treated based on their citizenship or immigration status.
In the context of employment, the Immigration and Nationality Act (INA) makes it illegal to discriminate against applicants or workers based on their national origin or citizenship status. It is important for an employer to understand anti-discrimination laws and ensure they provide a fair and equitable workplace.
Workers are protected under anti-discrimination laws, regardless of their immigration status. An attorney can help them understand what laws apply to their workplace and how they can ensure compliance.
Discrimination, employment, and immigration laws are all subject to change at a future time when there are changes in presidential administrations. Because of this, it is important for workers and employers alike to consult with a lawyer for any employment discrimination or immigration question they may have.
What Is Employment Discrimination?
Employment discrimination happens when an employee or potential employee is treated less favorably than other similar employees, solely because of certain characteristics. These characteristics or backgrounds are ones that are protected by law, and include their:
- Age
- Sex
- Gender
- Religion
- Disability
Employment discrimination also happens when one group of employees are treated better than another group, based again on protected classes or categories. An example of this would be when one group of workers clearly receives benefits that are denied to others on the basis of their sex, when both groups are otherwise similarly qualified.
Such discrimination generally happens when a person is already hired, but it can also happen when a person is seeking employment. An example of this would be when a person is not hired because they are of a certain religion.
In many instances of employment discrimination cases, only one specific characteristic of a person is involved, such as their age or their country of origin. However, multiple factor employment discrimination occurs when an employer discriminates against a person based on more than one trait or characteristics. An example of this would be how a person may be discriminated against in a work setting because of both their sex as well as their gender.
What Laws Govern Employment Discrimination?
Some of the more significant laws involving employment discrimination include:
- Title VII of the Civil Rights Act of 1964: A federal anti-discrimination act that makes it illegal for employers to discriminate against employees on the basis of sex, race, color, religion, or national origin. It applies to both private employers as well as those in local, state, and federal governments.
- The Equal Pay Act (“EPA”): The EPA protects employers against gender discrimination; specifically, it provides that employees of different genders should be paid equally if they are doing equal work.
- The Age Discrimination in Employment Act (“ADEA”): The ADEA provides protection from discrimination for employers who are aged 40 years and older, and addresses specific situations such as being forced to retire based solely on age.
- The Americans with Disabilities Act (“ADA”): The ADA prohibits discrimination against a person based on their disability status. It also addresses other aspects of employment, such as providing reasonable accommodations for disabled employees.
- The Immigration Reform and Control Act (“IRCA”): The IRCA imposes various requirements on employers in terms of employees’ immigration status, such as when and how an employer should verify the employment eligibility of workers.
- The Family and Medical Leave Act (“FMLA”): The FMLA is a federal law that governs how employees can take unpaid medical leave, and provides protection against being fired while on a legitimate or approved medical leave.
There are also several presidential executive orders that apply to discrimination and immigration, which include:
- Executive Order Realigning the United States Refugee Admissions Program (USRAP): This order places limitations on how immigrants can seek legal entry into the U.S.
- USRAP is suspended pending further evaluation.
- This order allows refugees to be admitted on a case-by-case basis.
- Executive Order Guaranteeing the States Protections Against Invasion: This order bars all people from entering the U.S. at the southern border, including asylum seekers.
- The Secretary of State and Department of Homeland Security (DHS) can admit individuals on a case-by-case basis.
- Executive order Protecting the Meaning and Value of American Citizenship: This order seeks to end birthright citizenship in the United States where all children born in the country automatically receive citizenship.
- One parent must be a permanent resident of the U.S. or a citizen for a child to be given birthright citizenship.
- Birthright citizenship will not be given to children whose parents are in the United States on a temporary visa.
- This law has been prevented from being enforced by a preliminary injunction.
- Executive Order Protecting the American People Against Invasion: This order outlines enforcement policies for illegal entry, unlawful presence, and removing individuals unlawfully present in the United States.
- This order also seeks to expand expedited removal.
These and other immigration laws can have a direct effect on employment and employment discrimination against immigrants, as they can impact their immigration status and eligibility to work in the United States.
What Is the Immigration And Nationality Act?
The Immigration and Nationality Act (“INA”) was the first law that committed the United States to accept immigrants of all nationalities on a roughly equal basis. In an employment law context, the INA requires employers to only hire employees who have proper work authorization. The INA also contains an Immigrant and Employee Rights Section (“IER”) which enforces anti-discrimination provisions of the INA, as well as protects immigrant employees from discrimination.
The Immigrant and Employee Section of the INA prohibits the following:
- Citizenship status discrimination: In hiring, firing, or recruitment or referral for a fee, by employers with 4 or more employees. Employers cannot treat people differently based on citizenship or their immigration status.
- The one exception would be permanent residents who do not apply for naturalization within six months of eligibility.
- National origin discrimination: In hiring, firing, or recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. It is against the law for employers to treat employees differently based on their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding “foreign.”
- Employers with more than 15 employees are governed by Title VII, which is enforced by the Equal Employment Opportunity Commission (“EEOC”).
- Unfair documentary practices during the employment eligibility verification of employees: Employers are prohibited from requesting more or different documents than required in order to verify employment eligibility.
- They are also prohibited from specifying certain documents over others with the purpose of discriminating against a group of people or an individual, based on citizenship status or national origin.
- Retaliation or intimidation: A person who files a discrimination claim with IER, who cooperates with an existing IER investigation, or who contests actions that may constitute unfair practices or discrimination are legally protected from intimidation, threats, coercion, and retaliation.
How Do I File A Discrimination Charge?
Employees who have experienced unlawful discrimination should call the immigrant and Employee Rights Section’s toll-free Hotline at (800) 225-7688. IER staff members can help employees contact their employers and explain proper procedures. Additionally, they can provide victims of discrimination with charge forms.
IER employees may also investigate a victim’s discrimination claim which generally takes no longer than 7 months from the date IER receives a formal charge of discrimination. Charges can be filed electronically, or by mail, fax, or email. Victims of discrimination who report the discrimination to IER may obtain various types of relief, including job relief or reinstatement and back pay.
Employers who violate anti-discrimination provisions may be required to reinstate the employee and provide back-pay. If the matter is litigated in civil court, the employer may have to pay attorney’s fees, as well as civil monetary damages if they are found guilty of discrimination.
In addition to the INA, Title VII of the Civil Rights Act makes it illegal for employers to discriminate based on a person’s national origin. While the INA only applies to employees with fewer than 15 employees, Title VII covers employers with 15 or more employees.
It forbids discrimination based on a person’s:
- Place of birth
- Culture
- Ancestry
- Linguistic characteristics
- Accent
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.
Do I Need an Attorney for Help with Anti-Discrimination Protection for Immigrants?
If you have been improperly discriminated against due to your immigrant status, contact an employment discrimination lawyer. An experienced employment law attorney can help you evaluate whether you have a valid case, and will also be able to represent you in court, as needed.
LegalMatch can help you find an attorney in your area in as little as 15 minutes who can help you with any employment discrimination issues you may be facing. All you have to do is submit your concern on the website for free and, in about 24 hours, you will receive messages from lawyers near you who are ready to help you.
