What Is Immigration-Related Discrimination?

One of the least well known employment discrimination provisions is found in the Immigration and Nationality Act, 8 U.S.C. § 1324b.  Here are the answers to some questions about the statute.

1. Which Employers Are Subject to Section 1324b?

The statute applies to all employers with more than three employees.

2. Who Is Protected by Section 1324b?

The statute protects U.S. citizens and persons who are working legally in the United States.  This includes aliens who are admitted to the U.S. as refugees or under asylum.  It does not apply to "unauthorized aliens."  It also does not apply to certain aliens who are eligible to apply for naturalization, but who have not applied or have not been naturalized within certain periods of time.

3. Does the Act Prohibit Discrimination on the Basis of National Origin?

Yes, but the statute provides an exception for people who are covered by Title VII.  As a practical matter, most national origin cases will still be brought under Title VII.

4. What Else Does the Act Prohibit?

a. The statute prohibits discrimination on the basis of citizenship status.  There are two exceptions to this:

  • If the employer is required by state or federal law to hire citizens for certain positions, or if the Attorney General has determined that it is essential that a citizen be hired for the position
  • An employer can lawfully prefer a U.S. citizen over an equally qualified non-citizen

b. The statute prohibits an employer from:

  • refusing to accept citizenship documents that appear to be genuine on their face,
  • demanding additional proof of citizenship beyond the types of documentation provided by the Act, or 
  • demanding different documentation when the employee has presented a valid form of documentation under the Act,

if this is done with the intention of discriminating against an employee on the basis of national origin or citizenship status.

c. The statute prohibits discrimination or retaliation based on the exercise of rights under section 1324b.

5. How Is Claim Under Section 1324b Initiated?

Within 180 days of the adverse action, either the employee or an agency employee must file a charge of discrimination with the Office of Special Counsel for Immigration-Related Unfair Employment Practices.  This initiates an administrative process that is prosecuted by the OSC or by the private claimaint.  The case is tried before an administrative judge.  The administrative judge can award reinstatement, back pay, civil penalties, and in some limited circumstances, attorneys' fees.  The final order is reviewable by a court of appeals.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

 

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