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Unfair Immigration Related Employment Practices (UIREP)-- Overview

Unlawful Anti-Discrimination Provisions—General Provisions
When Congress enacted IRCA 1986 it was concerned that the new law’s identity-document verification and sanctions would cause employers to discriminate against “foreign looking” U.S. citizens and legal aliens. A 1990 GAO study found that IRCA has triggered a “substantial amount” of discrimination. The GAO study found that Hispanic applicants were three times more likely to encounter unfavorable treatment, and Anglo applicants received 52% more job offers than the Hispanics.

Accordingly, part of the IRCA forbids employment discrimination based on citizenship, national origin, or immigration status.

  • Employers may not treat individuals differently because they re, or are not, U.S. citizens or other work-authorized individuals. U.S. citizens, recent permanent residents, asylees, and other refugees are protected from citizenship-status discrimination.
  • Employers with more than 3 and fewer than 15 employees may not treat individuals differently because of their place or birth, country of origin, ancestry, native language, or accent, or because they are perceived as looking or sounding “foreign.” U.S. citizens and all other work-authorized individuals are protected from national-origin discrimination.
  • Employers may not, on the basis of citizenship status or national origin: (1) Request more or different documents than are required to verify employment eligibility and identity of other employees, or (2) Reject reasonably genuine-looking documents or specify certain documents over others.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, Department of Justice (OSC), enforces the anti-discrimination provision of the INA. Title VII of the Civil Rights Act of 1964 (Title VII), as amended, also prohibits national origin discrimination, among other types of conduct. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII.

OSC and EEOC share jurisdiction over national origin discrimination charges. Generally, the EEOC has jurisdiction over larger employers with 15 or more employees, whereas OSC has jurisdiction over smaller employers with between 4 and 14 employees. OSC’s jurisdiction over national origin discrimination claims is limited to intentional acts of discrimination with respect to hiring, firing, and recruitment or referral for a fee, but the EEOC’s jurisdiction is broader. Title VII covers both intentional and unintentional acts of discrimination in the workplace, including discrimination in hiring, firing, recruitment, promotion, assignment, compensation, and other terms and conditions of employment. OSC has exclusive jurisdiction over citizenship or immigration status discrimination claims against all employers with four or more employees. Similarly, OSC has exclusive jurisdiction over all document abuse claims against employers with four or more employees.

Citizenship Status Anti-Discrimination Provisions (more limited “protected class”)
Citizenship or immigration status discrimination occurs when an employer treats employees differently based on their citizenship or immigration status in regard to hiring, firing, or recruitment or referral for a fee. Immigration status or citizenship discrimination protects a limited class of persons:

1. U.S. citizens;
2. Recent permanent residents;
3. Temporary residents under the IRCA legalization program;
4. Asylees, and refugees.

An employer must treat all of these groups the same. Subject to limited exceptions, the INA’s provision against citizenship or immigration status discrimination covers employers with 4 or more employees.

National Origin Anti-Discrimination Provisions (All workers protected)
This form of discrimination occurs when an employer treats employees differently based on their national origin in regard to hiring, firing, or recruitment or referral for a fee. An employee’s national origin relates to the employee’s place of birth, country of origin, ancestry, native language, accent, or because he or she is perceived as looking or sounding “foreign.” All work-authorized individuals are protected from national origin discrimination.

The INA’s provision against national origin discrimination generally covers employers with 4 to 14 employees.

Retaliation
Retaliation occurs when an employer or other covered entity intimidates, threatens, coerces, or otherwise retaliates against an individual because the individual has filed an immigration-related employment discrimination charge or complaint; has testified or participated in any immigration-related employment discrimination investigation, proceeding, or hearing; or otherwise asserts his or her rights under the INA’s anti-discrimination provision.

Types of Anti-Discrimination Provisions Prohibited by Title VII
As noted above, Title VII also prohibits employment discrimination on the basis of national origin, as well as race, color, religion, and sex. Title VII covers employers that employ 15 or more employees for 20 or more weeks in the preceding or current calendar year, and prohibits discrimination in any aspect of employment, including: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of company facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and leave; or other terms and conditions of employment.

 

This is an advertisement. The Goulder Immigration Law Firm is the law office of Gerald Goulder and limits its practice predominantly to US immigration and naturalization law; and we do not claim expertise in the laws of states other than Nort Carolina. The information contained on this site is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek advice from an experienced immigration attorney regarding specific case situations. The information on this website may not be up to date and should not be relied on without the advice and representation of your attorney. The links to government agencies and other websites are provided as a convenience only and no warranty express or implied is made regarding the accuracy of information obtained from those websites.