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FIVE CASES OF DISCRIMINATION IN THE WORKPLACE ON THE BASIS OF IMMIGRATION STATUS AND NATIONAL ORIGIN



The New York City Commission on Human Rights (“NYCCHR”) issued enforcement guidance last month regarding its prohibition of discrimination based on actual or perceived “alienage and citizenship status” and “national origin.”



Introduction

According to the New York City Human Rights Law (“NYCHRL”), it is illegal to discriminate against job applicants or employees on the basis of their actual or perceived immigration status or national origin.

The NYCHRL defines “alienage and citizenship status” as (a) a person’s citizenship, or (b) the immigration status of a person who is not a United States citizen or national. The Commission noted that because the term “alien” carries negative connotations and dehumanizes immigrants, the use of specific terms, such as “illegal alien” or “illegals,” with the intent to denigrate, humiliate, or offend a person constitutes discrimination under the NYCHRL. The Commission recognizes that it is frequently difficult to disentangle the motivations for discriminatory animus based on immigration status, national origin, and other protected categories, as this type of discrimination frequently occurs in conjunction with discrimination based on national origin, religion, ancestry, and/or ethnic characteristics. As a result, individuals who believe they have been the victim of discrimination may file a complaint under any or all of the categories above.

Individuals seeking to enforce their rights under the NYCHRL must file a complaint with the Agency within one year of the alleged discriminatory act, or in court within three years of the alleged discriminatory act. Notably, once an employer extends an offer of employment, the individual receives the same protections as any other employee under the NYCHRL, regardless of his or her immigration status or work authorization. Undocumented immigrants may file discrimination complaints with the Commission or in court. Regardless of an employee’s immigration status, remedies include back pay, front pay, and emotional distress damages.

Discrimination on the basis of immigration status and national origin can manifest itself in a variety of ways.

 

1. Inequitable Treatment

Discrimination occurs when an employer treats an employee less favorably than others on the basis of his or her actual or perceived immigration status or national origin. Discriminatory treatment can be overt or covert. Additionally, it can manifest itself through policies, treatment, harassment, and actions motivated by stereotypes, microinequalities, or assumptions. Discriminatory treatment based on one’s actual or perceived immigration status or national origin, for example, may be expressed through animus directed toward one’s accent or use of another language.



2. Employment Practices

Compliance with federal, state, or local laws that expressly permit inquiries into an individual’s immigration status under certain circumstances is not considered discrimination. This includes the employer verifying a job applicant’s employment authorization prior to hiring. Employers, on the other hand, should not hire or employ individuals who lack work authorization. Additionally, federal law permits employers to prefer hiring a US citizen or national over a noncitizen when the two candidates are “equally qualified,” but only after thoroughly considering the candidacy of all other applicants. Outside of this narrow exception, discrimination against individuals with work authorization (citizens, permanent residents, refugees, asylees, and those granted lawful temporary status) violates the NYCHRL.

Employers should exercise caution and employ consistent hiring practices, as well as a healthy dose of common sense! Employers should not inquire whether an individual with an accent has work authorization if they do not inquire the same question of someone without an accent. Similarly, if an employer hires an employee who is not authorized to work in the United States, that employee cannot be treated less favorably than other employees on the basis of his or her immigration status, including undocumented status.

 

3. Misuse of Documents

Employers must accept as valid work authorization any document that meets the I-9 “List of Acceptable Documents.” Employers must also refrain from requesting documents that are not necessary to establish valid work authorization (i.e. green card, birth certificate). Employers should avoid the following:

  • prior to accepting a job offer, request to see the individual’s work authorization documents.

  • refuse to accept a document or hire someone because it will expire in the future

When re-verifying an employee’s authorization to work, you must require a specific document.

The practices described above are referred to as “document abuse,” and they are illegal under the NYCHRL when motivated by discriminatory animus.

Re-verification of employment is permitted under federal law in the following limited circumstances: (1) the employee’s work authorization is about to expire; (2) the employer acquires “constructive knowledge” that the employee is not authorized to work; (3) the employer conducts a neutral, non-discriminatory self-audit of their compliance with work authorization requirements; or (4) during an I-9 audit conducted by an immigration officer. Reverification is not permitted in any other circumstance. Reverification is not permitted in certain circumstances, including reinstatement of an employee’s position, promotion, transfer, and strike.

Additionally, employers should not assume that a “Employee Correction Request Notice” or a “No-Match Letter” from the Social Security Administration (“SSA”) office indicates that an employee’s immigration status is in question. As a result, adverse employment action is simply not warranted, including but not limited to re-verification of the employee’s work authorization. The letter simply informs employers that corrections are required so that the SSA can properly post their employee’s earnings to the appropriate record for SSA benefit purposes. To reiterate, receipt of a No-Match Letter does not constitute grounds for terminating an employee or revoking the employee’s work authorization.

 

4. Immigration Enforcement on the Job

This can occur in one of two ways: (1) an unannounced ICE raid, during which ICE Agents inspect files and/or detain workers suspected of being unlawfully present; or (2) an I-9 audit, during which ICE requires employers to submit employment authorization records for verification within three business days.

Employers should notify employees when they are aware or suspect an audit or raid is imminent, so employees are aware of their rights and have time to update documents and make other preparations. Employers are not prohibited by law from notifying employees of a worksite raid or audit, unless expressly prohibited, as in the case of an ongoing criminal investigation. Employers may be able to mitigate the disruption caused by an unexpected raid by denying ICE access to non-public areas if the agents do not produce a judge-signed warrant.

It goes without saying that exploiting or threatening ICE involvement for the purpose of furthering a discriminatory motive, harassing or intimidating employees, or retaliating against employees for engaging in protected activity is a violation of the NYCHRL.

 

5. Discrimination and Harassment

Harassment motivated by an individual’s actual or perceived immigration status or national origin constitutes discrimination and may take the form of a single or isolated incident or a pattern of repeated acts or behaviors. Disparate treatment may manifest as harassment when an incident or an individual’s behavior fosters a demeaning or offensive culture or atmosphere. The seriousness or pervasiveness of the harassment is irrelevant to the determination of damages. A single remark may constitute harassment.

Employers, like other types of harassment, are strictly liable for an unlawful discriminatory practice if the harasser has managerial or supervisory responsibility. Employers may be held liable for harassment committed by a non-managerial employee if the employer (1) knew about the employee’s conduct and “acquiesced in such conduct or failed to take immediate and appropriate corrective action,” or (2) should have known about the employee’s discriminatory conduct and “failed to exercise reasonable diligence to prevent such discriminatory conduct.”

Threats by employers to contact federal immigration authorities may constitute unlawful harassment under the NYCHRL if motivated in whole or in part by animus toward the employee’s actual or perceived immigration status or national origin. Threatening to contact immigration authorities or the police in order to coerce employees into working in unsafe, unequal, or otherwise illegal conditions is considered unlawful harassment. While reporting a violation of the law to the police is permitted under other circumstances, when such action is taken solely for discriminatory or retaliatory purposes, it violates the NYCHRL.