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).
The OSC issued its recent opinion letter in response to a question about whether an employer violates the INA’s anti-discrimination provisions by terminating its “U.S. workers” and hiring “contract workers with temporary work visas” to do the same jobs. The questioner also asked if a company could be held liable under the INA for this sort of action if it were performed by a third-party contractor, such as a staffing agency. The OSC offered a lengthy answer to both questions, which might fairly be summarized as “yes.” A company may be liable for the acts of a third party if the two could be considered a “joint employer” of the complainant.
Two types of employment discrimination exist under Title VII: individual acts of discrimination, and patterns or practices by employers that disproportionately affect a protected group of employees. The U.S. Supreme Court established the basic elements of each type of claim, respectively, in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The OSC notes in its opinion letter that the OCAHO has adopted these decisions and the entire framework of Title VII in its jurisprudence regarding INA employment discrimination claims. Sodhi v. Maricopa Co. Special Health Dist., 10 OCAHO No. 1127 (2008).
The OSC noted one important distinction, however, between the INA and Title VII, which is that the INA applies only to intentional acts of discrimination. Title VII’s provisions may apply to acts or policies that, while appearing neutral as to any of the protected classes, have a disproportionate impact. The INA only applies to actions taken “because of” national origin or citizenship status. 8 U.S.C. § 1324b(a)(1).
If you need to speak to an employment discrimination attorney in New Jersey or New York, contact the Resnick Law Group today through our website, at 973-781-1204, or at (646) 867-7997.
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New Jersey Federal Court Allows Race, National Origin Discrimination Lawsuit to Proceed, The New Jersey Employment Law Firm Blog, January 27, 2015