Is Immigration Status a Protected Class? Yes.

By Erica E. Flores - Skoler, Abbott & Presser, P.C.

June 25, 2018

With the recent chaos on the U.S.-Mexico border, and Congress’s continuing failure to resolve the months-long controversy over the Dreamers, immigration continues to be a hugely divisive topic across the country.  It has dominated headlines, consumed Facebook pages, and surely ruined many meals among friends and colleagues on opposite sides of the debate.  Such political discourse is not necessarily a bad thing – it reminds us all of the coveted freedoms our citizenship affords us – but when the debate seeps into the workplace, professional judgment and objectivity can deteriorate, and that can have costly legal consequences for employers.

Imagine that you are trying to fill a skilled position.  It has been vacant for some time, the few applicants to express interest have not been qualified, and the short-handed department is starting to suffer.  And then, like magic, the perfect resume appears on your desk.  You immediately e-mail the department head to give him the good news and ask about setting up an interview.  You are met with radio silence.  You follow up.  Again, nothing.  After a couple of days, you find him in his office and ask him directly:

“Did you see my e-mails?  About that candidate?  Let’s get her in here before she finds something else,” you begin.

“I don’t think so,” comes the answer.

“What do you mean?” you ask, confused.

“I mean, I don’t want to interview her,” he responds.

“But why?” you persist.

“Didn’t you read her cover letter?” he barks.  “She’s a refugee, from Honduras of all places.  There’s no way I’m going near that minefield.”

“But she’s legal, and she would be perfect,” you plead.

“I don’t care,” he says, and with that, the conversation is over.

You aren’t happy about his decision, but you let it go, put her resume in the recycle bin and forget about it . . . until you get a copy of a charge she filed with the Immigrant and Employee Rights Section of the U.S. Department of Justice.  Invoking federal law, the applicant claims that you engaged in unlawful discrimination when you refused to hire her on the basis of her status as a refugee.

“Is that really illegal??” you may be wondering.  The answer is yes.  Since 1986, the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1324b, has made it an “unfair immigration-related employment practice” for an employer with four or more employees to refuse to hire an applicant (or to terminate an existing employee) on the basis of his or her national origin or citizenship status so long as the individual is residing in the United States legally.  The law protects not just citizens, nationals and lawful permanent residents, but also lawful temporary residents and aliens who have been granted asylum or have been admitted into the United States as refugees, provided that they timely pursue naturalization.  The statute also prohibits covered employers from intimidating, threatening, coercing or retaliating against a protected individual for the purpose of interfering with his or her immigration-related employment rights or because the individual has taken any action to enforce those rights, and from engaging in certain practices related to immigration-related documentation.

Employers do have the right to prefer an “equally qualified” citizen or national over a lawful alien, but employers should think carefully before making any hiring decision on the basis of immigration status, because charges can be burdensome and costly to defend even if an employer is ultimately cleared of wrongdoing.  The Immigrant and Employee Rights Section must investigate all charges and has the power to require employers to produce documents and answer interrogatories, to solicit the testimony of witnesses, and to examine books, records, databases and other sources of information on site.  Even if the Section decides not to file a complaint, the charging party has the right to file a complaint on his own behalf, and the specially-appointed administrative law judges who decide such cases have the power to order employers to hire unlawfully rejected applicants, with back pay, and to impose civil penalties.  Massachusetts law, too, prohibits discrimination based on national origin.

So what’s the bottom line?  Everybody who is residing in this country legally is authorized to work here, and the law does not give employers the right to reject (or fire) employees on the basis of their immigration status, regardless of personal political opinions or perceived concerns about how the decision might affect the business.