Immigration / Alienage Discrimination
U.S. Courts have consistently ruled that employers may not distinguish between different classes of non-citizens who are in the United States legally and seeking work. Specifically, an employer may not lawfully deny employment to a non-citizen on the basis of 1) whether s/he possesses a green card, 2) whether s/he has a specific type of visa, or 3) whether s/he has an Employment Authorization Document or other documentation.
The right not to be treated differently from other legal residents is a basic statutory right. 42 U.S.C. §1981, originally passed as part of the Civil Rights Act of 1866, states: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." This protection extends to all "lawfully present aliens."
Courts have recently ruled in favor of plaintiffs who sued employers for maintaining a policy or practice of requiring a non-citizen applicant to provide a green card in order to be considered for employment. Courts have also found that bringing a claim of alienage discrimination does not require a plaintiff to show that the employer has subjected other applicants to the same discrimination; the existence of a general policy by the employer is generally sufficient to show that the discrimination was intentional. An isolated instance can support the legal claim, in other words, and there need not be evidence that any person in the organization intended to discriminate.
As a District Court recently explained, both the Second Circuit Court of Appeals and the U.S. Supreme Court have found that it is unlawful for an employer to create "a subset of aliens, scaled by...how we perceive the aliens' proximity to citizenship." The only distinction that an employer can lawfully draw in making hiring decisions is between legal and non-legal aliens.
At The Harman Firm, we pride ourselves on an up-to-the-minute understanding of all relevant regulations. We offer expert advice and aggressive representation for employees facing discrimination in all its forms. If you have any questions about employment law or workplace mistreatment you may have suffered, contact us today.