Immigrant discrimination is the unfair or unequal treatment of a person or group of persons based on their classification in a “protected status”, such as race, national origin, sex, religion, and political background.
Anti-discrimination laws prohibit such conduct as harassment or preferential treatment based on the person’s background. Immigrant workers who are in the U.S. under a valid employment visa and work permit generally have similar rights to any other workers in the country.
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.
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.
While it is against the law for employers to knowingly hire illegal immigrants, they also cannot make decisions that are discriminatory against immigrants. They also cannot enforce or maintain work policies that are discriminatory in nature.
In order to avoid potential liability and lawsuits, employers should take steps to prevent discrimination in the workplace, like:
- Evaluate all candidates for employment or benefits in a way that is consistent and fair (i.e., not asking for more proof from some individuals, but not others);
- Terminate and/or replace supervisors who are found to have discriminated in the hiring process;
- Keep informed and updated regarding major changes in state and federal employment and immigration laws; and
- Implement newer methods for checking employee documents, such as the E-Verify system.
In addition, if a policy is found to be discriminatory in nature, that policy should be replaced with a newer one that conforms to anti-discrimination laws. This may require a re-writing of the employee handbook and replacing information that may be posted about the workplace.
Immigrant workers who are in the U.S. under a valid employment visa and work permit generally have similar rights to any other workers in the country. In fact, due to their background, they may also have specific rights that protect them from issues like harassment and employment discrimination against immigrants.
Some laws even go so far as to protect immigrant workers from discrimination based on the ethnic appearance or use of language.
Violations of immigration rights can often lead to a legal claim against the employer. Typically, claims may be filed through the company’s human resources department, through a government agency like the EEOC, or through a private civil lawsuit in court.
The availability of these routes may depend on the type of violation involved. For instance, discrimination cases are largely processed through the EEOC.
Anti-discrimination policies should be followed very carefully in the workplace. Discrimination violations can carry very serious legal consequences, especially with the recent changes in immigration laws in some states.
You may wish to contact a local immigration lawyer if you need help with the immigration laws in your area. Your attorney can provide you with advice regarding the policies in your workplace, and can represent you in court if a legal claim needs to be filed.