Immigration / Alienage Discrimination

Alienage or citizenship status means the immigration status or citizenship of any person who is not a citizen or national of the United States.

Under federal law, anyone who is not a citizen or national of the United States has the statutory right not to be treated differently from other legal residents. 42 U.S.C. § 1981 (“Section 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.” This means that employers may not lawfully deny employment to a non-citizen on the basis of whether they possess a green card, whether they have a specific type of visa, or whether they have an Employment Authorization Document or other documentation, including individuals protected by Deferred Action for Childhood Arrivals (DACA). In other words, employers may not distinguish between different classes of non-citizens who are in the United States legally and seeking most types of work, though there are several exceptions in the public sector, such as holding some elected offices. Non-citizen job applicants are protected against discrimination based on their immigration or citizenship status, regardless of factors such as whether the applicant currently or in the future would require “sponsorship” by the employer in order to obtain work authorization, the additional immigration costs for legal and filing fees, the possibility of shortened employment due to an application denial, and the desire to avoid export control issues sometimes associated with sharing technological information with foreign nationals. Also, states cannot prevent an otherwise qualified individual from obtaining a license based on their alienage or citizen status.

Unfortunately, while immigrants have federal-level protections against workplace discrimination under Section 1981, courts have interpreted the protected class of “national origin” under Title VII of the Civil Rights Act of 1964 to exclude alienage or citizenship status, and the New York State Human Rights Law also offers no such coverage.

Here in the City of New York, however, the New York City Human Rights Law (NYCHRL) explicitly includes alienage and citizenship status as protected categories, granting New York City non-citizen workers additional city-level protections against employment discrimination. The NYCHRL defines alienage and citizenship status as the citizenship of any person or the immigration status of any person who is not a citizen or national of the United States. Examples of acts that qualify as alienage- or citizenship-based discrimination under the NYCHRL include an employer telling you that you need to meet additional eligibility verification standards and provide additional forms of identification documents or fill out additional paperwork, or an employer’s refusing to accept a document from you that reasonably appears to be genuine and belonging to you or refusing a document produced for identification because it has a future expiration date. Discrimination on the basis of alienage or citizenship status may also include discriminatory comments, such as an employer asking an immigrant job applicant, “Are you sure you are a citizen? You sound foreign,” or making remarks like “I would prefer to hire U.S. citizens.”

At The Harman Firm, LLP, we pride ourselves on an up-to-the-minute understanding of all relevant laws and regulations and are committed to advocating for the rights of employees and job applicants who have been subjected to discrimination based on their immigration, alienage, or citizenship status. The employment discrimination attorneys at The Harman Firm, LLP, 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 because of your immigration status, contact The Harman Firm, LLP, today.

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