Protection Against Discrimination
Based on National Origin
By: Samuel N Omwenga, Esq.
It is a fact that minority groups, especially Africans, Hispanics and Asians routinely are discriminated against by their American prospective and real employers. Often, even the law looks the other way as this evil is visited on many a foreign worker. To attempt to address this problem, Congress enacted INA § 274B as part of the Immigration Reform and Control Act of 1986 (IRCA).
Section 274B generally prohibits discrimination in hiring and firing based on an individual's national origin or citizenship status. The law also prohibits such discrimination when recruiting or referring an individual for a fee.
However, there are several exceptions to the law against discrimination based on national origin and other unfair immigration-related employment practices. First, the law does not apply to "unauthorized aliens;” essentially Congress’ attitude is, you come here without authorization, you are fair game for anyone to discriminate or do whatever they please without fear of being punished. This is true even though the U.S. Constitution says anyone on U.S. soil is entitled to equal protection of the law. In any case, there is another exception: unlimited free bites by small employers. A small employer is defined as an entity that employs fewer than four employees. Such an employer can discriminate against foreigners at will—no questions asked.
Another exception to this law provides that an employer, recruiter or referrer may discriminate on the basis of an individual's national origin if the discrimination is allowed under another provision of the law, which permits a discriminatory requirement that is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." However, this exception only applies to national origin discrimination, not to discrimination based on an individual's citizenship status. The fourth exception allows an employer to discriminate based on citizenship status if such discrimination is otherwise required to comply with federal, state or local laws, regulations, or contracts, or if the Attorney General determines it "essential" that an employer employ only U.S. citizens to do business with a federal, state, or local agency or department. Finally, a company or entity may lawfully prefer to hire, recruit, or refer a U.S. citizen or national over an alien "if the two individuals are equally qualified."
As one might imagine, employers with ill intentions may chose to fit their businesses under any of the above exceptions so as to get away with their true intentions that would otherwise be illegal and punishable. If you suspect this might be happening to you or anyone you know, it’s best to consult with a lawyer immediately and let him or her evaluate your case to determine whether further action is warranted. There are remedies available to a person who can prove that they have been discriminated against in violation of this law (§ 274B) and these remedies include hire, reinstatement, back pay, injunctions and attorney's fees. Back pay, however, is limited to the two-year period prior to the filing of an administrative complaint with the appropriate agency, subject to certain offsets. A more detailed analysis of this law will be provided in the future in this space but if you have specific questions in the meantime, contact the Law Office of Samuel Omwenga at (202) 508-8252 or at firstname.lastname@example.org.