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Reporting Immigration-Related Discrimination

Immigrants have played an increasingly important role in the U.S. economy. They work in all kinds of occupations in healthcare, management, construction, sales, etc. As of 2009, more than fifteen percent of the entire U.S. labor force were foreign born.

Immigrant workers at times face problems at the workplace. They fall victim to unlawful discriminatory practices of employers.

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently released an information guide on what constitutes immigration-related discrimination and provided contact information to report violations.

In many cases, immigrant workers experience discrimination because of their national origin or citizenship status. For instance, a foreign-born job applicant applying for a position may not be legally denied the position because he/she has a foreign name or because he/she did not look “American”. An employer also may not base a hiring or a promotion on the worker’s accent if it does not materially interfere with the performance of the job.

In other words, when making employment decisions an employer must treat all people equally and regardless of the individual’s place of birth, country of origin, native language, or their perceived nationality or ethnic background.

Another type of discrimination that immigrants are subjected to is citizenship discrimination. An employer cannot treat a person differently because of his/her citizenship or immigration status, but this presupposes that the individual is legally eligible to work. U.S. citizens, recent permanent residents, asylees and refugees are protected from this type of discrimination.

A “U.S. citizen only” hiring policy is illegal unless it is needed to comply with law or government contract. If a qualified green card holder applies for the job but is rejected because of such a policy, the employer may be liable for back pay and civil penalties.

In 2010, a restaurant franchise operator settled a discrimination complaint for $20,000 in back pay and civil penalties after refusing to hire a non-U.S. citizen. The employer had a policy of not hiring immigrants so the employer’s human resources personnel rejected all applicants who sounded or appeared foreign.

It is also discrimination for an employer to require a worker to present his green card and refuse any other proof of identity and work authorization (such as a valid driver’s license together with an unrestricted social security card) before allowing the worker to begin employment.

This practice is an example of document abuse and is usually committed in the I-9 verification process. The employer cannot demand specific documents, require the employee to give more documents than necessary, or reject reasonably genuine-looking documents that relate to the worker.

Retaliation by the employer is also prohibited. An individual may not be penalized for opposing discrimination, filing a complaint, or cooperating in a discrimination investigation or lawsuit.

Many government agencies at the federal, state and local levels enforce anti-discrimination laws.
The Equal Employment Opportunity Commission (EEOC) is in charge of enforcing federal workplace anti-discrimination laws, except citizenship and immigration status discrimination which is handled by the Office of Special Counsel at the Department of Justice.

Those who believe that they were unfairly or unlawfully discriminated against should call the Office of Special Counsel hotline at 800-255-7688 and consider filing a complaint. Time limitations and the size of the employer may determine if and where they can file the complaint.

Although their remedies may be limited, undocumented workers can also file a complaint with the EEOC. However, because of their lack of work authorization they are vulnerable to retaliation so they are advised to consult an attorney if possible.

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