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Authorized and Unauthorized Workers
Opposition to immigrant workers, asylees, and refugees is growing in the United States. A number of federal laws protect immigrant workers, including Title VII of the Civil Rights Act of 1964 and the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA).
TITLE VII – NATIONAL ORIGIN DISCRIMINATION
Title VII protects individuals from discrimination based upon national origin (as well as other protected categories), but it is unclear whether this protection extends to undocumented workers (“illegal aliens”), and, if so, what remedies are available. In Hoffman Plastic Compounds, Inc. v. N.L.R.B., the Supreme Court reversed the National Labor Relation Board’s award of wages to an undocumented alien, but affirmed the Board’s authority to impose other sanctions against the employer. Hoffman appears to support the proposition that an employee’s claim for wages under Title VII may be subject to the employee’s immigration status and ability to work legally in the country. Following Hoffman, a district court in Texas, Escobar v. Spartan Security Service, denied an employee’s Title VII claim for past wages, but confirmed other remedies may be possible. In Egbuna v. Time-Life Libraries, Inc., the Fourth Circuit Court of Appeals held that an unauthorized alien whose former employer refused to rehire him had no claim under Title VII because ruling otherwise “would sanction the formation of a statutorily declared illegal relationship” “given Congress’ unequivocal declaration (in the Immigration Reform and Control Act of 1986) that it is illegal to hire unauthorized aliens.”
IRCA – IMMIGRANT STATUS DISCRIMINATION
The IRCA prohibits employers from hiring “unauthorized aliens,” defined as a person who is either (a) not lawfully admitted for permanent residence, or (b) not authorized to be employed in the United States. The Act also protects individuals from employment discrimination based on immigration or citizenship status and prohibits document-abuse discrimination.
Employers with 4 or more employees are prohibited from discriminating against a “protected individual” on the basis of citizenship status with respect to hiring, recruitment (or referral) for a fee, and termination of employment. A “protected individual” is a U.S. citizen or national, a legal permanent resident, a lawful temporary resident, a refugee, and an asylee, except that permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship-status discrimination.
The IRCA also prohibits employers with 4 to 14 employees from discriminating against an individual on the basis of national origin. This provision applies to U.S. citizens, lawful permanent residents, and other work- authorized individuals. Title VII imposes this same prohibition for employers with 15 or more employees. National origin discrimination can include actions taken because of an employee’s place of birth, country of origin, ancestry, native language, accent, or because the person is perceived as looking or sounding “foreign.”
It is not unlawful, however, for an employer to prefer a U.S. citizen or national over another equally-qualified individual who is not or to discriminate on the basis of citizenship status where it is required to comply with a government contract or mandate.
It is unlawful under Title VII and the IRCA for an employer to intimidate, threaten, coerce, or retaliate against any individual who files a charge or complaint of discrimination or has testified or participated in an investigation, proceeding, or hearing regarding such a charge.
UNFAIR DOCUMENTARY PRACTICES
Discriminatory documentary practices related to verifying the employment authorization and identity of employees is unlawful. Document-abuse discrimination occurs when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others. This often occurs during the Form I-9 process. Employers should ensure that when an employee is provided the Form I-9 to complete, the “Lists of Acceptable Documents” page is made available to the employee. Also, if an employer chooses to photocopy documents for the I-9 verification, it must do so for all employees, regardless of actual or perceived national origin or of immigration or citizenship status.
English-only rules require employees to speak only English on the job. Such rules are disfavored by the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces federal anti-discrimination laws in the employment setting, but judicial decisions on the subject have gone in different directions, making it difficult for employees and employers to know what is and is not allowed. Between 2010 and 2016, the EEOC received between approximately 150 and 220 charges of discrimination based on national origin arising out of an “English-only” rule.
The EEOC looks at two categories of rules. The first category consists of English-only policies that prohibit employees from speaking their native language at all times. Those policies can “disadvantage an individual’s employment opportunities on the basis of national origin” and “could result in a discriminatory working environment.” For that reason, the EEOC presumes that such policies violate Title VII.
The second category of English-only are those that require employees to speak only English at certain times. According to the EEOC, such policies are permissible as long as they are justified by “business necessity.” The EEOC’s Compliance Manual explains that an English-only rule is justified by business necessity “if it is needed for an employer to operate safely or efficiently.” Examples are for communications with customers, coworkers, or supervisors who only speak English; in emergencies or other situations in which workers must speak a common language to promote safety; for cooperative work assignments in which the English-only rule is needed to promote efficiency; and to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers. The EEOC requires an employer with an English-only policy to inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule.
The U.S. Supreme Court has not yet spoken on the lawfulness of English-only policies in the workplace, but the EEOC’s position has not been widely accepted by the lower federal courts.