Federal statutes like the Civil Rights Act of 1964 are widely-known and frequently invoked in cases of allegedly unlawful discrimination or harassment. The Civil Rights Act prohibits discrimination based on a wide range of factors, including race, gender, and religion. Other statutes also protect workers from specific types of discrimination. The federal Immigration and Nationality Act (INA), for example, prohibits employment discrimination based on national origin or, in some cases, citizenship status. While the principal purpose of this statute is to protect United States citizens, it can also protect immigrants with employment authorization in many situations.
Section 274B of the INA, codified at 8 U.S.C. § 1324b, prohibits employers from discriminating in hiring or firing individuals, as well as other features or benefits of employment, based on national origin. For United States citizens and legally-admitted immigrants, the statute prohibits discrimination based on citizenship status. This includes anyone admitted as a legal permanent resident, also known as a green card, and anyone authorized by immigration authorities to work in the United States. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) handles alleged discrimination in violation of the INA.
The law differs from other federal anti-discrimination laws in two important respects. First, it does not protect undocumented immigrants or immigrants without employment authorization. It also does not prohibit employers from giving U.S. citizens preference over non-citizens, provided the applicants are otherwise equally qualified. The statute specifically prohibits filing overlapping claims with the OSC and the Equal Employment Opportunity Commission (EEOC), which investigates alleged violations of the Civil Rights Act.
In late November 2012, the U.S. Department of Justice (DOJ) announced that it had settled a claim against a North Carolina company alleging unlawful discrimination against three employees. According to the DOJ’s announcement, one of the employees filed a complaint with the OSC after the company, Gamewell Mechanical, Inc., terminated the three employees. The company reportedly learned that six other employees were undocumented and, assuming that the three employees were also undocumented, fired all nine. The three employees were actually U.S. citizens. The company agreed to pay $10,560 to the three individuals for back wages, as well as civil penalties totaling $9,600.
The DOJ intervened in a pending discrimination case before the Office of the Chief Administrative Hearing Officer (OCAHO) in September, brought by a U.S. citizen alleging national origin discrimination. OCAHO is an administrative court with original jurisdiction over immigration-related employment claims, claims for hiring of unauthorized immigrants, and claims of immigration document fraud. The plaintiff is reportedly a U.S. citizen with a dozen years experience in farm equipment operation. He alleges that Estopy Farms in McAllen, Texas unlawfully discriminated against him by hiring a less-qualified foreign worker. According to the DOJ, an investigation concluded that the company preferred to hire workers through the H-2A visa program instead of U.S. citizens. The H-2A program provides temporary visas for seasonal agricultural jobs, but employers must still give preference to qualified U.S. citizens. Many employment-based visa applications require an employer to certify that no qualified U.S. citizens are available to fill the position.
If you need to speak to an employment law attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or 646-867-7997.
More Blog Entries:
New Jersey Workers’ Wages Explained, Violations Commonplace, The New Jersey Employment Law Firm Blog, December 16, 2011
New Jersey Police Race Discrimination Lawsuit Settled, The New Jersey Employment Law Firm Blog, July 26, 2011
Jersey City Housekeeper Alleges Discrimination By New York City Billionaire, The New Jersey Employment Law Firm Blog, May 17, 2011
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