Are Immigrants Protected Against Employment Discrimination?

06/26/07

Various laws protect immigrants from employment discrimination. The Immigration Reform and Control Act contains an amendment that bars unfair immigrant-related employment practices. Who Must Comply?
If an employer has at least 4 employees, it must comply with the immigration anti-discrimination laws. Essentially, an employer is not permitted to discriminate against persons on the basis of national origin. This includes discrimination related to hiring and firing. Standards for Liability
Many employers may be reluctant to hire someone merely because the person appears to be "foreign" either by physical appearance or by having a thick accent. The standard for employer liability under the immigration laws is somewhat higher than that of the federal civil rights laws (Title VII). Typically, the employer's violation must be intentional. Not Just Aliens
A person who has been discriminated against based upon national origin, however, does not necessarily have to be an alien. Unlawful discrimination may occur on the basis of national origin despite the fact that the person is a U.S. citizen. However, the immigration anti-discrimination laws protect aliens who are permanent residents, or are who lawfully in the United States. For the most part, illegal aliens are not protected. The Process
If employment is denied, the employee must show:

• That he/she falls within a class of persons protected under the applicable laws, such as national origin
• That he or she is qualified for the position

The employer must then show:

• A legitimate reason why another person was selected for the position

Then the employee must show:

• That in reality the employer's reason for hiring the other person was really not a legitimate reason

Latitude Given
Employers are provided some latitude, however. For example, just because a person is a qualified alien and not a citizen does not mean that an employer must hire the alien over an equally qualified citizen. Penalties
Penalties for wrongful discrimination on the basis of national origin may include compliance orders, including hiring or reinstatement of the affected individual. Back pay may also be awarded. Fines may also be imposed upon the discriminating employer.