Can an employer discriminate on the basis of immigration status?

The Immigration Reform and Control Act (IRCA) requires every employer to make sure that each of its employees is eligible to work in the United States. Alongside these procedural requirements are anti-discrimination provisions that make sure employers do not cross the line between due diligence in checking employees’ work eligibility and discrimination.

Under IRCA, an employer cannot discriminate in the hiring, firing, recruiting, or referring for a fee of a person based on that person’s national origin, or citizenship status if that person is a protected individual. Protected individuals include citizens of the the United States, temporary resident aliens, refugees, and asylees. However, the Act excludes aliens who could have applied to become U.S. citizens, but failed to do so. To be protected by the anti-discrimination provisions of IRCA, such alien must be actively pursuing citizenship.

IRCA protects against discrimination only in hiring, firing, recruiting, and referring for fee; it does not protect against discrimination in wages, promotions, or employee benefits. This protection does include protection against discrimination based on national origin and citizenship. So, an employer cannot treat prospective employees differently based on their national origins. For example, an employer cannot require more or different documents from minorities than from non-minorities. Similarly, an employer cannot give prospective employees preferential treatment based on citizenship status. It cannot establish different hiring criteria for non-citizens and citizens, and it cannot wholly exclude non-citizens from applying. Protected individuals include U.S. citizens, so employers cannot discriminate against U.S. citizens by preferring foreign-born workers.

Further, an employer cannot retaliate against an employee or intimidate an employee based on his participation in an ICE investigation or his opposition to the hiring of workers in violation of IRCA. An employer also cannot require excessive documentation or limit the number or type of documents prospective employees can present to verify their work eligibility.

The anti-discrimination provisions are enforced by the Office of the Special Counsel for Immigration-Related Unfair Employment Practices, and an employer does not need to intend to violate the Act to have these provisions enforced against it. To prove discrimination, all an employee needs to show is that the employer intended the discriminatory conduct—that the employer intended to treat persons differently based on national origin or citizenship status.

While IRCA prevents discrimination based on national origin and citizenship status, there are limits on the enforcement of those anti-discrimination provisions. For example, an employee claiming discrimination based on national origin cannot bring a claim under IRCA and Title VII. If a claim is covered by Title VII, which also prohibits discrimination based on national origin, an employee cannot bring a claim under IRCA.

Further, an employer can discriminate based on citizenship status if it required to do so by law, regulation, or Executive Order. An employer can also discriminate based on citizenship if it is required by a federal, state, or local government contract, or the discrimination is determined by the Attorney General to be essential for the employer to do business with a federal, state, or local agency or department. For example, an employer who has a government contract with the Department of Defense may require its employees to be U.S. citizens.

Another limitation on IRCA’s anti-discrimination provisions is the employer’s right to prefer equally qualified citizens. If an employer compares the qualifications of a citizen and a non-citizen and the two are equal, the employer can prefer the citizen for employment—that is, the employer can lawfully make its hiring decision based on citizenship status.