Generally, when one hears the phrase “national origin discrimination,” one immediately calls to mind discrimination against non-citizens or citizens of certain ancestral backgrounds (such as anti-Asian discrimination, anti-Latino discrimination. etc.) However, the full spectrum of national origin discrimination actually goes beyond that, also including incidents of employment discrimination where U.S. citizens were the group targeted for illegal treatment. While less common, it is just as illegal. If you’ve encountered discrimination based on your national ancestry and/or your immigration status, whether you were an immigrant, a non-citizen temporary worker, or a U.S. citizen, you should contact a knowledgeable New Jersey national origin discrimination lawyer to discuss your legal options.
As noted above, while discrimination against U.S. citizens makes up a minority of all national origin/immigration status cases, it does occur. In fact, one central Jersey employer recently agreed to pay a five-figure settlement for allegedly engaging in that sort of discriminatory conduct.
The employer was an Edison Township-based staffing company that hired workers in the engineering and information technology (IT) industries. Starting at the beginning of 2019 and continuing at least into April 2020, the staffing firm posted a dozen or more IT job listings that said that the successful applicant should be temporary visa workers (such as individuals with H-1B visas.)
This type of requirement amounted to illegal national origin discrimination, as it has the unstated but inevitable impact of disqualifying applicants such as immigrant workers with green cards and people with U.S. citizenship.
This, according to the U.S. Justice Department, constituted a violation of the Immigration and Nationality Act. (Both Title VII and the INA have provisions barring certain types of discrimination based on national origin and/or immigration status.) The Civil Rights Division of the DOJ explained that when “employers invite applications only from candidates with specified immigration statuses, they deter individuals from applying and deny them a fair chance to be considered.”
This type of illegal discrimination represents a risk of harm both to the citizens and green-card holders barred from competing for the jobs… and to the temporary workers who get hired into these roles. That’s because getting fired means more than just the loss of a job to a worker holding a temporary work visa… it also can mean a one-way ticket out of the United States and back to the worker’s home country, often on short notice. That implicit threat makes for the potential for abuse.
The Edison Township-based company isn’t the first to undergo an investigation by the DOJ for illegally restricting its hiring to workers on temporary work visas. This past spring and summer, the Civil Rights Division and three employers — one in New York, one in California, and one in Virginia — agreed to three settlements of national origin cases the DOJ opened against them. In each case, the employer stated a desire for applicants to hold either temporary worker status generally or an H-1B visa specifically. In each case, the DOJ secured a settlement ranging from $12,000 to $17,000.
In the New Jersey firm’s case, it agreed to a settlement of $26,000.
‘Papers Please’: When Documentation Demands Can Constitute Illegal Discrimination
As noted above, the majority of national origin/immigration status cases involve discrimination against non-citizens. One way that employers may discriminate is by demanding documentation of proof of legal work status that exceeds what the law requires. In fact, last December, the DOJ completed a settlement with Microsoft in a case where the software giant allegedly discriminated by demanding documentation from non-citizen candidates that exceeded what the law said was necessary.
Another is to refuse to accept certain forms of documentation that the law says are permissible. Federal law specifically says that, when an employment candidate completes their Form I-9, the worker has the choice of which documents they’ll use to verify their legal status.
It’s important to keep in mind that, in some circumstances, an employer may restrict the immigration status of successful job applicants without violating the law. In some situations, certain laws or regulations may dictate that only U.S. citizens may hold certain jobs. Additionally, some government contracts may similarly restrict specific jobs as “U.S. citizen-only” positions. In these scenarios, employers that refuse to consider temporary visa workers and other non-citizens do not violate Title VII or the INA for doing so.
New Jersey, as a hub of technology and manufacturing, can be a place where workers can experience national origin or immigration status discrimination — whether because they aren’t U.S. citizens… or because they are. Either way, these instances can constitute violations of discrimination. If you’re a worker caught in a scenario like that, the experienced New Jersey national origin discrimination attorneys at Phillips & Associates are here to help. Contact us online or at (866) 530-4330 today to set up a free and confidential consultation to discuss how we can put our knowledge and skills to work for you.