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Unlawful discrimination
Unlawful discrimination
Unlawful discrimination
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Unlawful discrimination


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  • 2. UNLAWFUL DISCRIMINATION • • • • • • • In general, discrimination on the basis of citizenship status is prohibited under IRCA in hiring, recruiting, referring for a fee and discharging. In addition, another provision prohibits an employer from intimidating, threatening, coercing, or retaliating against anyone who exercises their rights under the anti-discrimination provisions. Discrimination because of citizenship status will arise when the employer relies on its obligations under IRCA as an excuse for not hiring, or for discharging, a protected individual. For example, an employer with a policy that only green cards or service-issued documentation will be accepted from aliens to document work eligibility is discriminating against aliens in the protected class on the basis of citizenship status. It is also engaging in document abuse. An employer also engages in citizenship-based discrimination when it tells a job applicant that it cannot hire the applicant because he or she is not a permanent resident, or that the employer only hires citizens (only in rare cases is such a policy acceptable). Similarly, an employer who discharges a protected individual, for example refugees/asylees, because it finds out that the individual is not a permanent resident engages in citizenship-based discrimination. In these cases, refusing to hire a protected individual, or discharging one, constitutes discrimination under IRCA because the employer is treating someone differently because of their immigration status. Note also that discrimination based on "citizenship" status may include decisions not to hire U.S. citizens when the employer hires an alien with the intention of discriminating against U.S. citizens. The Office of Special Counsel (OSC) has made use of its authority, for example, to charge employers who have hired alien workers in the H-2B nonimmigrant category in preference to available U.S. workers with unlawful discrimination. The OSC theory was upheld by an administrative law judge, even though the employers had obtained "labor certifications" from the Department of Labor certifying that qualified U.S. workers were unavailable to fill the positions given to the nonimmigrant aliens. In the end, however, the OSC was unable to establish that the employer intended to discriminate against the U.S. workers in hiring the H-2B aliens. As noted above, discrimination in hiring on the basis of national origin is under the jurisdiction of the Equal Employment Opportunity Commission under Title VII of the 1964 Civil Rights Act; only when that discrimination is committed by an employer with between four and 14 employees does it fall within the jurisdiction of the Office of Special Counsel (OSC) under IRCA. That leaves discrimination based on "citizenship status" and document abuse as the primary subject matter of IRCA. How is citizenship-based discrimination different from national origin discrimination? In many respects they are the same. In both cases, the employer might refuse to hire an individual because of his or her "foreign" appearance or accent.
  • 3. UNLAWFUL DISCRIMINATION • • • • • Discrimination must be "knowing and intentional." As the H-2B case illustrates, in order for acts of discrimination under IRCA to be prohibited, the discrimination must be "knowing and intentional" on the part of the employer. It is not sufficient under IRCA for the government to show that the employer's actions have a "disparate impact" on a protected class, and therefore presumptively constitute discrimination; in contrast, a disparate impact may be used to establish national origin discrimination under Title VII of the 1964 Civil Rights Act. The IRCA standard means that claims of unfair immigration-related employment practices must be proven according to a disparate treatment theory of discrimination, i.e., the claimant must show that the employer knowingly and intentionally treated him or her less favorably than others based on unlawful criteria such as national origin or citizenship status. Limitations on IRCA's discrimination coverage. IRCA contains some limitations on the type of conduct otherwise considered to be citizenship-status discrimination. Of course, the first limitation is that the law does not cover employers with three or fewer employees. IRCA also does not cover discrimination in the terms or conditions of employment, such as compensation, unless the disparate treatment is intended as retaliation for the employee's exercise of his or her rights under IRCA. Note, however, that other civil rights laws may cover disparate treatment in the terms of employment when that treatment is based on a prohibited basis such as national origin. Conduct that would otherwise constitute discrimination under IRCA—such as a citizens-only hiring restriction for a particular position—is exempted from coverage when the discrimination is required in order to comply with law, regulation, or executive order, or is required by a federal, state, or local government contract between the employer and the government. Also exempted is discrimination determined by the Attorney General to be essential for the employer to do business with an agency or department of the federal, state, or local government. Note, however, that the OSC interprets any contractual requirements or laws, rules, or executive orders, narrowly. For example, a requirement in a defense-related government contract that only citizens work on the project does not permit the employer to impose such a requirement for its custodial or clerical staff; noncitizens could work in nondefense-related parts of the premises, while citizen staff members could work in those portions of the premises where the defense work occurs. The employer must make whatever arrangements are reasonable to minimize the impact of the contract-mandated discriminatory policy. One final exemption from IRCA occurs when the employer gives preference in hiring to a U.S. citizen over an equally-qualified protected individual. This exemption does not extend to policies to hire U.S. citizens when a job applicant who is a protected individual is better qualified than the citizen. The exemption can only be applied in a case-by-case setting—that is, the employer must be comparing an actual citizen job applicant with an actual noncitizen applicant and determine that the citizen is at least equally qualified with the noncitizen. Employers must keep in mind that comparison of credentials is inherently subjective and presents the risk that the OSC might reach a different conclusion about the comparative qualifications if a complaint is filed. Also, the EEOC has