Anti-Discrimination Protections for Immigrants

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; and
• 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; as such, 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; and
• 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.

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; and/or
• 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.

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’ immgiration status, such as when and how an employer should verify the employment eligibility of workers; and
• 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.

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:

1. 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;
2. 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”);
3. 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; and
4. 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 hey 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; and/or
• 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.