Under the Immigration Reform and Control Act or IRCA, it is illegal for employers that have at least four employees to discriminate against applicants and workers based on their citizenship status. The IRCA also offers protection to workers from discrimination based on their national origins. Title VII of the Civil Rights Act of 1964 similarly prohibits national origin discrimination by employers that have 15 or more employees. If you believe that your employer has illegally discriminated against you based on your national origin or citizenship status, the attorneys at Swartz Swidler might be able to help.
What is citizenship discrimination?
Citizenship discrimination occurs when employers discriminate against employees based on their citizenship status when there is not a federal law that explicitly allows them to do so or when U.S. citizenship is not an essential job requirement. The prohibition against citizenship discrimination applies to all aspects of employment from hiring through termination.
Employers are also prohibited from retaliating against employees because they have filed a complaint of discrimination based on their citizenship under the IRCA. If two people apply for the same job and have equal qualifications, the employer is allowed to give preference based on the citizenship of one of the applicants. However, employers are not allowed to have blanket policies to prefer citizens for all open positions that they might have.
Exceptions to the IRCA
Unauthorized workers are not protected by the IRCA’s citizenship discrimination prohibition. The IRCA also does not protect people who do not apply to become naturalized U.S. citizens within six months of when they are eligible to apply. Finally, the IRCA does not protect people who have applied to become naturalized U.S. citizens but are not naturalized within two years of the date of their applications unless they can demonstrate that they are pursuing naturalization actively.
How to enforce your rights under the IRCA
If your rights under the IRCA have been violated by a prospective employer or by your current employer, you must file a complaint of citizenship discrimination with the Office of the Special Counsel for Unfair Immigration-Related Employment Practices within 180 days. One of the most common violations that happen occur when employers refuse to hire applicants because they incorrectly believe that the people do not have the legal authorization to work in the U.S. If your rights have been violated, it is important for you to adhere to the 180-day limitations period for filing your complaint. If you don’t, you may lose your rights to pursue damages under the IRCA.
You will need to start the process by writing a letter that summarizes your situation. Then, you will send it to the Special Counsel’s office. You can learn more about what you should include in your letter and where you should send it to at the Special Counsel’s website.
After the office receives your letter, it will have 120 days to investigate your complaint of citizenship discrimination and to decide whether or not it will pursue a discrimination charge against your employer. The office will then either bring a charge against your employer or send you a notice that it has not been able to find enough evidence to support your complaint. You will then be able to argue your claim directly to an administrative law judge. However, you are required to request a hearing no later than 90 days following the end of the 120 days during which the office is allowed to take action on your complaint.
Get help from an experienced employment lawyer at Swartz Swidler
If you believe that a prospective employer or your current employer has engaged in unlawful citizenship discrimination against you, you need to act quickly. The deadlines are strict, and if you fail to file your complaint in a timely manner, you will lose your rights. An experienced employment lawyer at Swartz Swidler might help you to gather evidence to support your discrimination charge and to determine what you should include in your complaint. If you are notified that the special counsel has not found enough evidence, your lawyer may argue for you at the hearing in front of the administrative law judge. Call us today to schedule a consultation to learn more about your rights.