Spotlight on Anti-Discrimination Efforts - Government Grants and Lawsuits
Posted Oct 01, 2000

The Office of Special Counsel for Immigration-Related Unfair Employment Discrimination (OSC) of the U.S. Department of Justice (DOJ) has awarded grants to 11 nonprofit organizations for programs to educate employers and workers about the laws on immigration-related discrimination.

Under law, employers and recruiters with more than three employees are prohibited from discriminating on the basis of citizenship status or national origin in hiring or recruitment decisions. Furthermore, employers are not allowed to retaliate against or intimidate an employee for raising a discrimination complaint. Also prohibited is a practice known as "document abuse." Document abuse involves asking for more or different documents than those indicated on the employment eligibility verification (I-9) form, or refusing to accept documents that look authentic. 

One successful employee complaint reported in the legal literature was that of a professor from India applying for an English instructor position. The professor charged that he was denied the position, despite being the unanimous choice of the search committee, because of his race and national origin. He filed suit in federal district court, and the college ultimately settled the case for $50,000 in lost income and compensatory damages. 

Another case was a class-action lawsuit against a company that employed Mexican and Guatemalan workers, including many undocumented persons. The charges were that the company paid foreign-born workers less, that it denied them overtime compensation and that it harassed the workers, including sexual harassment in some cases. A separate, private lawsuit was also filed on behalf of some former employees. 

The above case was filed by the Equal Employment Opportunity Commission (EEOC), which has jurisdiction over national origin discrimination complaints against companies with 15 or more employees. A different agency, the Office of the Chief Administrative Hearing Officer (OCAHO), handles cases of national origin discrimination against companies with more than three but fewer than 15 employees. OCAHO also handles all citizenship status discrimination complaints with respect to companies employing three or more people. 

While the laws protect both authorized and undocumented workers, undocumented workers are obviously more vulnerable because of their fear that their employers might report them to the INS. Reporting, or threatening to report, workers who file anti-discrimination complaints may constitute unlawful retaliation. Yet if the employer can show that it would have reported them in any case, or that it discovered their undocumented status after a complaint had already been filed, then the employer has a defense that could limit the remedies available to the employee.