Earlier this month, the Justice Department announced settlement of a claim between The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and Culinaire International, a catering and restaurant management company out of Houston, Texas. Culinaire allegedly engaged in citizenship discrimination by requiring “lawful permanent resident employees” to produce a new Permanent Resident Card upon expiration of their prior card. http://www.justice.gov/opa/pr/2014/September/14-crt-923.html.
The Immigration and Nationality Act (INA) strictly prohibits this procedure, as “lawful permanent residents” are entitled to permanent work authorization, even after their resident cards expire. Specifically, Section 247(B) of the act prohibits employers from discriminating against employees based on their nationality or citizenship status. http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html.
The United States Department of Justice reported that Culinaire was cooperative and eager to change its practices to avoid any future citizenship-based discrimination claims. The settlement agreement required Culinaire to pay $20,460 in civil penalties to the United States, establish a $40,000 “back-pay” fund for potential victims of the company’s discrimination, as well as submit to INA anti-discrimination training. Culinaire is additionally required to alter its employment reverification process, the implementation of which will be monitored by the Department of Justice.
It is important to note that discrimination based on citizenship status and discrimination based on nationality are not one in the same. Title VII of the Civil Rights Act of 1964 governs discrimination based on nationality and prohibits unfavorable treatment of those employees from or associated with (by marriage, ancestry, etc.) a particular country or part of the world. Examples of nationality-based discrimination include unfavorable employment policies towards employees or potential employees with an “accent” or even an “English only” employment policy, in which a business only hires applicants fluent in the English language. http://www.eeoc.gov/laws/types/nationalorigin.cfm.
Citizenship-based discrimination, on the other hand, is governed by the Immigration Reform and Control Act of 1986 (IRCA), as well as the aforementioned Immigration and Nationality Act (INA). These statutes prohibit unfavorable employment practices with respect to the citizenship status of a person, including general protection against the citizenship-based discrimination that Title VII does not cover. Interestingly enough, per the EEOC, common examples of discrimination based on citizenship status include a “citizens only” or “green card only” hiring rule.
The Supreme Court upheld the distinction between nationality-based discrimination and citizenship-based discrimination nearly forty years ago in the Espinoza v. Farah Mfg. Co. Inc.. In Espinoza, the defendant company denied the non-citizen plaintiff’s employment application on “the basis of a longstanding company policy against the employment of aliens.” (@87). At that time, the Equal Employment Opportunity Commision (EEOC) issued an interpretative guideline which served as the premise for the plaintiff’s complaint, as it stated: “Because discrimination on the basis of citizenship has the effect of discriminating on the basis of national origin, a lawfully immigrated alien who is domiciled or residing in this country may not be discriminated against on the basis of his citizenship…” (@92).
In Espinoza, the Supreme Court did not find that discrimination on the basis of citizenship had the effect of discrimination on the basis of national origin and upheld the business’ right to hire only those who had obtain citizenship status. (@93). The Court acknowledged a potential connection between citizenship-based and nationality-based discrimination, in certain instances, such as an employer’s use of a citizenship test as a pretext to cloak actual national origin discrimination. (@93). The majority opinion therefore concluded that nothing in Title VII makes citizenship-based discrimination illegal (@95).
Though it is not binding law, Justice Douglas’ dissenting opinion in Espinoza brings to light some great questions about this distinction and its potential effect on employment law in this day and age. Justice Douglas asserts, almost scathingly, that discrimination based on national origin and discrimination based on citizenship are closely related. Highlighting the fact that aliens are only considered such due to their birth outside of the United States and therefore have a different nationality, Justice Douglas expressed serious concern that the construction of the term ‘national origin’ was not the same as the construction given to the terms ‘race’ or ‘sex’ when analyzing a discrimination claim. Accusing the majority of this misconstruction, he states: “Discrimination on the basis of alienage always has the effect of discrimination on the basis of national origin…any other construction flies in the face of the underlying congressional policy of removing ‘artificial, arbitrary, and unnecessary barrier(s) to employment.” (@97-98).
Of course, the Supreme Court’s holding is binding and still stands to this day. Yet Justice Douglas’ dissent pinpoints an area of concern in bringing a national origin or citizenship based discrimination claim: Does the Court’s failure to include citizenship-based discrimination as a subset of discrimination based on nationality create a loophole for employers in Title VII proceedings? A potential client could allege citizenship-based discrimination under IRAC or INA, but do these additional and subsequent acts provide sufficient protection for clients enduring citizenship-based discrimination? And finally, why is the distinction between national origin discrimination and citizenship-based discrimination in Title VII still so important if statutes exist condemning both forms of discrimination?
In this increasingly globalized economy, it is essential that employers maintain equal opportunity employment practices and pay close attention to the statutes, and nuances within those statutes, that govern acceptable employment practices. Discrimination based on nationality or citizenship status may not be the first type of employment discrimination that comes to mind, but it is most certainly a present-day concern for employers and potential employees, alike.
As with any rule, there are exceptions.
Please seek professional assistance with any questions or specific situations.
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