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What Antidiscrimination Options Do Undocumented Workers in New Jersey Have?

Last month, the New York City Commission on Human Rights issued a new “legal enforcement guidance” document that potentially impacted hundreds of thousands of workers in that city. In the new document, the commission provided new details on forms of conduct that constitute impermissible discrimination and/or harassment.

Even though the city’s new guidance isn’t enforceable in New Jersey, and even though citizenship status isn’t a protected class under the Law Against Discrimination, that does not mean that undocumented workers who suffer harassment and/or discrimination on the job due to their immigration status are without recourse here. There are still other potential options, both under state law and federal law, so you should be sure to reach out to an experienced New Jersey employment attorney about your circumstance right away.

This new guidance didn’t expand the protections of the city’s anti-discrimination and harassment laws – those laws already barred discrimination and/or harassment based on immigration status and national origin. Rather, the new guidance clarified what may constitute immigration status or national original discrimination.

One thing the guidance did was to declare that using the terms “illegal aliens” or “illegals” can constitute impermissible discrimination. As with many things regarding potentially offensive language, context matters. The term must be used “with the intent to demean, humiliate or offend,” according to the guidance.

The guidance also stated that certain “English-only” or other restrictive language policies may be impermissibly discriminatory. The document used, as an example, a hypothetical hotel employer that prohibited its Spanish-speaking housekeeping staff from speaking Spanish at work out of fear of offending hotel guests.

Additionally, threatening an undocumented worker with a call to federal immigration authorities was also prohibited by the guidance. So, if a worker objected to doing a task that was unsafe or illegal, and the supervisor told the worker that, “You can do as instructed or I can call ICE,” that may be against the law.

NJ law doesn’t specifically mention undocumented workers, but you still have options

In New Jersey, state law doesn’t explicitly include citizenship status as protected under the Law Against Discrimination. However, if you are the victim of discrimination or harassment based upon your status as an undocumented immigrant, that does not mean that you have no legal options in this state. For one thing, federal law already prohibits workplace discrimination based upon citizenship status so, if you’re the victim of discrimination as a result of your undocumented status in New Jersey, you can pursue your case under federal law.

Additionally, you may be able to proceed under state law, just under a different approach. If, for example, your employer harasses and threatens its Latinx undocumented workers, you may be able to proceed with a Law Against Discrimination case under the theory of national origin discrimination.

Undocumented workers and those fighting nationality discrimination face many challenges working in New Jersey. Being threatened, intimidated, peppered with slurs or otherwise harassed on the job should not be one of them. If you’re an undocumented worker who has been harmed at work, talk to the experienced New Jersey employment attorneys at Phillips & Associates. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how we can help you.

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