If an employer discriminates against an employee because of his national origin or citizenship, then the employee may be able to file a complaint for back pay and an order for the employer to stop the discrimination, under the recent changes to the immigration laws.
The Immigration Reform and Control Act of 1986 prohibit employment discrimination on account of national origin or citizenship. While the government is not expected to issue their new regulations until the spring of 1987, this article discusses the new laws enacted by Congress on November 6, 1986.
The antidiscrimination provisions extend the protection of Title VII of the 1964 Civil Rights Act to claims of discrimination on account of national origin or citizenship, regardless of whether the employment is seasonal and so long as there are four or more employees. Previously, the Title VII did not cover seasonal jobs or workplaces with less than 15 employees.
Under the new law a complaint may be filed by any person adversely affected by such discrimination, by the Immigration and Naturalization Service, by someone representing an affected person (like a union), or by the newly created Office of the Special Counsel. Complaints must be filed with the Special Counsel within six months after the discrimination. Then the government does not take the employer to court, then an employee himself may sue. Such cases go to an administrative judge who may order the employer to stop the discrimination, order that the employee be rehired, order that the employee be given any back pay due, fine the employer up to $1,000 per individual discriminated against, and force the losing party to pay reasonable attorney’s fees if there was no reasonable basis for arguing the case. Until the new regulations are issued, the exact procedures will not be known, but because the new law is already in effect people who feel that they may have a claim should file the complaint before the six month deadline to file is over.
The law does not punish discrimination in’ all cases. The only people protected are U.S. citizens and “intending citizens”. To bean intending citizen, a person must do the following: First, the person must be a resident, a refugee, an asylee, or someone legalized under the new laws; Second, the person must file Form N300 declaring that they intend to apply for U.S. citizenship; and, Third, the person must apply for citizenship within six months of eligibility.
Furth more, the law has several exceptions which prevent punishment under the new law. Employers with less than four employees are not covered. In cases where discrimination on account of national origin is related to a bona fide occupational qualification, such as requiring English language abilities, then the law would not apply. Where employment is affected by a government law, regulation or contract requiring citizenship or discrimination on account of national origin, then such discrimination is allowed. Finally, in cases where two applicants are equally qualified, then an employer may favor citizens over others.
Another problem with the new law is that it may be difficult to prove where discrimination has occurred. The law is not clear as to just what kind of proof is required. Most people agree that intentional discrimination will be prohibited. The more difficult cases will require proof of a pattern of discrimination. Cases decided under the Civil Rights Act may be of some help in clarifying the new rules.
The antidiscrimination provisions became law in response to fears that many minority groups would be discriminated against by employers who did not want to violate the new laws prohibiting employers from hiring workers without employment authorization. Those rules will’ require employers to verify a new worker’s employment authorization by requiring the worker to show certain documents proving work permission. These documents include U.S. passports, resident cards, and properly endorsed Immigration Service documents. One example of possible antidiscrimination claim may be where an employer demands U.S. Passport, even though the new worker is able to show some of the other pro at of eligibility for work. If refused employment, then that worker may file a claim within six months. If the claim is granted, the administrative judge may order the employer to hire the worker, to give back, and to pay the worker’s expenses in hiring an attorney.
Article extracted from this publication >> February 13, 1987
