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Articles Posted in National Origin Discrimination

Title VII of the Civil Rights Act of 1964 is not the only federal statute that protects employees from discrimination in the workplace. The Immigration and Nationality Act (INA), which was first enacted in 1952, prohibits employers from discriminating on the basis of “national origin” and “citizenship status.” 8 U.S.C. § 1324b. Those two terms have specific meanings in this context. The U.S. Department of Justice (DOJ) enforces these provisions through its Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), and the Office of the Chief Administrative Hearing Officer (OCAHO) adjudicates claims. In late 2015, the OSC issued an opinion letter addressing questions about the extent of the INA’s anti-discrimination protections.

The INA prohibits discrimination in hiring, recruitment, and firing of individuals based on their national origin. It also prohibits discrimination in these areas on the basis of citizenship status, but only for “protected individuals,” whom it defines to include U.S. citizens, individuals who have recently attained lawful permanent resident status (i.e., a “green card”), and people who have been granted official status as refugees or asylees. 8 U.S.C. § 1324b(a)(3). These provisions are much narrower in scope than those of Title VII.

The INA states that its prohibition against national origin discrimination does not apply if the alleged discriminatory act violates Title VII’s provisions on national origin, meaning there is not intended to be any overlap between the INA and Title VII. Id. at § 1324b(a)(2)(B). The prohibition on discrimination based on citizenship only applies to “protected individuals,” as defined above, and it does not apply if an employer prefers to employ a U.S. citizen or national over an equally qualified non-citizen. Id. at 1324b(a)(4).

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A former program manager for the internet company Facebook has filed a lawsuit against the company in state court in California, alleging sexual harassment and discrimination based on race and gender. Hong v. Facebook, Inc., et al, No. CIV-532943, complaint (Cal. Super. Ct., San Mateo Co., Mar. 16, 2015). The case alleges numerous acts of conduct towards the plaintiff that, when taken in isolation, might seem minor, but that add up over time to constitute significant disparate treatment based on her gender and her national origin. The laws at the state and federal level are clear that employers may not discriminate in promotions, job duties, and other features of employment based on these categories. These types of claims, unfortunately, can be difficult to prove. Another recent lawsuit against a Silicon Valley venture capital firm made similar allegations but resulted in a jury verdict for the defendant. The current case makes a wide range of allegations, however, that indicate overtly discriminatory treatment towards the plaintiff.

According to her complaint, the defendant hired the plaintiff in June 2010 for the position of program manager. It transferred her to “technology partner” in October 2012. She claims that she performed her job duties well throughout her time with the company, pointing to “satisfactory performance evaluations” and regular raises as evidence. Hong, complaint at 2. Prior to the events immediately preceding her termination, she states that she “received no significant criticism of her work.” Id. She was allegedly terminated on October 17, 2013.

The plaintiff alleges that multiple employees of the defendant, including her supervisor, who is named individually as a defendant, and others identified in the complaint as “Does One through Thirty,” discriminated against her based on gender. This allegedly included comments belittling her work and admonishment for “exercis[ing] her right under company policy to take time off to visit her child at school.” Id. at 3. She also claims that she was given assignments that no male co-workers were expected to do, such as organizing office parties and serving drinks. She makes a direct allegation that the company hired a “less qualified, less experienced male” to replace her. Id.
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A federal lawsuit filed by a former cosmetics company employee, which has since been settled and dismissed, raised claims of race, ethnicity, and national origin discrimination, retaliation, and other claims. Meyers v. Revlon, Inc., et al, No. 1:14-cv-10213, complaint (S.D.N.Y., Dec. 30, 2014). The plaintiff accused the chief executive officer (CEO) of numerous derogatory statements, and of retaliation for noting and reporting safety and regulatory concerns. The lawsuit asserted causes of action under federal, state, and city law, including New Jersey’s whistleblower protection statute.

According to his complaint, the plaintiff worked in the cosmetics industry for 35 years, rising from an entry-level position to the defendant’s Chief Science Officer. He took that position in 2010, and he stated that “his career progressed without impediment until November 2013.” Id. at 1. The defendant acquired Colomer, a beauty care company based in Spain, in August 2013. In November 2013, it named Colomer’s CEO as its new CEO and President.

The plaintiff claimed that he played a key role in integrating the two companies, which included reviewing Colomer’s regulatory compliance. He reported concerns about Colomer’s facility in Barcelona to the new CEO. He claimed that the CEO became angry and told him not to discuss regulatory or safety matters with him in order to maintain “plausible deniability.” Id. at 15. From then on, the CEO allegedly harassed and belittled the plaintiff, often in front of colleagues.
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A federal judge in New Jersey recently denied the defendants’ motion to dismiss a lawsuit alleging race and national origin discrimination. A former employee, who worked for nearly two decades as a contract employee for a federal agency, is claiming that the agency wrongfully failed to hire him for a permanent position. Suri v. Fox, et al., No. 1:13-cv-05036, 2nd am. complaint (D.N.J., Apr. 16, 2014). After the defendants moved to dismiss the lawsuit, the court ruled that the plaintiff had made a prima facie case for race and national origin discrimination. This means that the case may proceed, and that the burden shifts to the defendants to show a non-discriminatory basis for their actions.

The plaintiff, who is originally from India, became a U.S. citizen in 1992. He has bachelor’s and master’s degrees in electrical engineering and a master’s degree in environmental engineering. He began working for the Federal Aviation Administration (FAA) as a summer intern in 1995. During the internship, he states that he asked about a permanent position but was told that a hiring freeze prevented the FAA from offering him a permanent job. He accepted a contract position with H-Tec Systems, an FAA contractor, when his internship ended in September 1995. He continued working on site at the FAA’s William J. Hughes Technical Center in Atlantic City, New Jersey for 13 years. In 2008, he took a job with another contractor, EIT, that kept him in the same place.

According to his complaint, the plaintiff worked with FAA employees on a daily basis, had an office cubicle at the FAA facility, and used office equipment, supplies, and furniture provided by the FAA. The details of his employment, including work assignments, discipline, and leave, were under the control of FAA supervisors. He claims that he continued to ask about a permanent position and was still told about a hiring freeze. The supervisor who cited the hiring freeze, however, allegedly hired several Caucasian employees with lesser qualifications than the plaintiff to permanent positions during this time period. At various other times, the plaintiff claims that employees with lesser qualifications and less seniority than him, all Caucasians, were placed in positions over him.
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A former sales executive obtained a substantial verdict in May 2014 in a lawsuit against Microsoft, which accused the software company and a consultant of employment discrimination, sexual harassment, retaliation, and defamation. Mercieca v. Rummel, et al, No. D-1-GN-11-001030, third am. pet. (Tex. Dist. Ct., Travis Co., Apr. 12, 2013). He alleged a conspiracy to make false allegations of sexual harassment against him, which resulted in a hostile work environment and discriminatory treatment. The company then retaliated against him, eventually constructively terminating him, after he formally complained about the hostile work environment.

The plaintiff worked for Microsoft for 17 years in offices around the world. At the time of the events described in the lawsuit, he was a Senior Sales Executive in the company’s Austin, Texas office. He claimed that he had an excellent reputation within the company and had received multiple awards for sales performance, customer service, and service to the company.

In the fall of 2007, Lori Aulds was named Regional Sales Director, which made her the plaintiff’s direct supervisor. The two of them, according to the plaintiff, had a sexual relationship that ended several years prior to her promotion. She allegedly remarked about her current relationships to the plaintiff and tried to get him involved in disputes with her new significant other, despite his insistence that it made him uncomfortable.
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Federal immigration law requires employers to verify the employment eligibility of their workers. It also, however, prohibits them from discriminating on the basis of national origin or citizenship status, provided that the employee is not an undocumented immigrant. The Department of Justice (DOJ), through its Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, recently offered guidance for employers regarding internal audits or other inquiries into employees’ work eligibility beyond that required by law. Any sort of employment eligibility verification policies applied unevenly or inconsistently could lead to liability under federal immigration law.

Employers are prohibited from employing unauthorized workers, and are required to verify that all employees and new hires are authorized to work in the United States. 8 U.S.C. § 1324a. Knowingly hiring or employing an unauthorized worker, which could be an undocumented immigrant or someone with a visa that does not allow employment, could result in civil or criminal penalties. Immigration authorities have created Form I-9, the Employment Eligibility Verification form, to enable employers to verify work authorization. An employee or new hire must present certain documents establishing their identity and their employment authorization. The employer is only required to examine the employee’s document and attest that it “reasonably appears on its face to be genuine.” Id. at § 1324a(b)(1)(A).

Federal immigration law also prohibits most employers from discriminating based on national origin or citizenship status. 8 U.S.C. § 1324b. It is not considered unlawful discrimination under this statute for an employer to prefer equally-qualified U.S. citizens over noncitizens with regard to hiring or recruiting. It is, however, considered unlawful discrimination for an employer to require a noncitizen to provide more or different documents than a citizen to complete Form I-9, or to refuse to accept certain documents that reasonably appear valid solely because the person is not a U.S. citizen. Id. at § 1324b(a)(6).
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The New York City Police Department (NYPD) issued an anti-bias message alert that warned sergeants and lieutenants about harassment or discrimination against red-haired officers. The story, reported in the New York Post, has met with mostly bemused responses from people who do not feel that redheads are a particularly disadvantaged group in the United States right now. It raises the question of exactly where hair color falls within the law of employment discrimination. To the extent that hair color is seen as an indication of race, ethnicity, or national origin, it could give rise to a claim for unlawful employment discrimination. The U.S. Supreme has never addressed the question directly, but lower courts have considered the role of hair color and other physical attributes.

According to the New York Post, no lawsuits against the city have alleged employment discrimination based on red hair. Officers quoted in the Post‘s story say they have “endured years of ridicule,” but none seemed to think that it rose to the level of actionable discrimination or harassment. From a legal standpoint, however, red hair could be a protected category if an employment practice had a significantly disparate impact on redheads. The Post article also quoted red-haired British model Lily Cole, who suggested that bias against redheads may be a bigger problem in the United Kingdom.
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The U.S. Department of Justice (DOJ) announced in January 2013 that it settled a claim of citizenship and national origin discrimination against Houston Community College (HCC), in lieu of filing suit. The DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigated a complaint of hiring discrimination, in the form of requests for specific documentation from non-citizens not requested of U.S. citizens. The OSC concluded that the practice violated the Immigration and Nationality Act (INA), which prohibits employment discrimination based on national origin or lawful immigration status. Under the terms of the settlement agreement, HCC will pay a civil penalty, adopt a new process of verifying employment eligibility, and create a fund to compensate prior victims for lost wages.

According to the settlement agreement between the DOJ and HCC, the OSC received a complaint on March 12, 2012 alleging national origin discrimination and other violations of the INA’s anti-discrimination provisions. The OSC’s investigation concluded that HCC had engaged in a practice, for a period of at least two years, that required non-citizens to produce documents during the hiring process demonstrating work authorization. Job applicants that HCC believed to be United States citizens were not required to produce such documentation during the hiring process. Proof of employment eligibility is normally required after hiring, when the employer must complete Form I-9, the Employment Eligibility Verification document. Although it found HCC’s practices to be discriminatory, it did not find that the complainant was a victim of discrimination.
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A group of pharmacists with nonimmigrant visas sued a number of New York state officials over a law limiting pharmacy licenses to U.S. citizens and legal permanent residents. The plaintiffs in Dandamundi, et al v. Tisch, et al, 686 F.3d 6 (2nd Cir. 2012) alleged that the law violated the U.S. Constitution’s Equal Protection and Supremacy Clauses by discriminating based on “alienage.” The Second Circuit affirmed the trial court’s ruling in the plaintiffs’ favor, finding that immigration status, other than a lack of documented status, is a “suspect class” and that the law failed strict scrutiny review. While this case did not directly involve allegations of discrimination by an employer, it may have an important benefit for nonimmigrant employees who face discrimination based on their immigration status or national origin.

The plaintiffs have H-1B worker visas or TN temporary worker status, giving them the right to work in the United States for a limited time in a specified job. Each plaintiff had legally worked in the United States for six or more years. The court stated that twenty-two of the thirty-two plaintiffs had applied to obtain green cards. The six-year maximum H-1B period had expired for sixteen of the plaintiffs, so they had obtained Employment Authorization Documents from immigration officials to allow them to remain in the U.S. and continue working during review of their applications.

All of the plaintiffs had New York pharmacy licenses issued through a waiver program in New York Education Law § 6805(1)(6). The law states that pharmacy licenses are only available to citizens and permanent residents, but the waiver extended the availability of licenses to people with certain nonimmigrant visas. The plaintiffs’ pharmacy licenses became void when the waiver expired in 2009.
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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.
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