Are undocumented workers covered by discrimination laws?
The Immigration Reform and Control Act of 1986 is a federal law that prohibits employers from knowingly hiring undocumented workers. Employers should ask employees to prove that they are a citizen or have a green card, naturalization document, work permit, or visa with work privileges. If employers fail to comply with this law, they can face serious penalties.
Despite this federal law, many undocumented immigrants are employed in the United States. In fact, it is estimated that undocumented immigrants make up about 5% of the total workforce. Some employers feel they can treat undocumented immigrants differently than other employees because undocumented workers are less likely to pursue legal action and reveal they are working illegally. But, you should never let this fear get in the way of protecting your rights. Once you are hired by an employer in the U.S., you are protected by the same federal discrimination laws that protect other legal employees.
The Equal Employment Opportunity Commission (EEOC) is a federal agency that is responsible for enforcing federal discrimination laws, including Title VII of the Civil Rights Act of 1964. This law prohibits employers from discriminating against employees because of their race, color, national origin, and a number of other defining characteristics. Employers who are choosing to discriminate against undocumented workers are doing so because of that person’s race, color, or national origin, which means the victims have the right to pursue a discrimination charge.
What is discrimination?
Federal law prohibits employers from discriminating against employees because of their race, color, or national origin when making decisions related to hiring, firing, promotions, or pay raises. For example, an employer cannot fire someone solely because he or she is Mexican. This law also protects undocumented workers from being harassed because of their race, color, or national origin. Harassment, which can include offensive jokes, gestures, or physical threats, is a form of discrimination and is therefore illegal under federal law. Repeatedly calling someone an ethnic slur would be one form of harassment.
How can undocumented workers report discrimination in the workplace?
If you feel you are being treated unfairly in the workplace, bring it to your employer’s attention before going any further. Your first instinct may be to call an attorney, but it will be easy for your employer to escape liability if you never formally told them about the discrimination.
File a complaint with your employer and include as much information about the discrimination as possible, including what happened, when it happened, and who did it. Be sure to ask for a copy of the complaint so you have proof that you made your employer aware of the discrimination. Your employer has a legal obligation to begin investigating your claim as soon as possible. However, many employers fail to fulfill this obligation. If your employer fails to investigate the claim, or does not take action to prevent the discriminatory behavior from continuing, you have other legal options.
Visit one of the EEOC’s field offices near you to begin the process of filing a discrimination charge against your employer. You will need to provide basic information to the EEOC, including your contact information, your employer’s contact information, and a brief description of what happened. The EEOC will not ask about your immigration status.
Within 10 days of filing the complaint, the EEOC will inform your employer of your allegations and ask them to submit a written response. In many cases, the EEOC will ask you to attend mediation with your employer so you can try to peacefully reach a settlement. Mediation is not always effective, and if it is not successful in your case, the EEOC will move forward with an investigation of your claims.
The goal of the investigation is to determine whether your employer discriminated against you because of your race, color, or national origin. Representatives from the EEOC may visit your workplace to interview witnesses and review company documentation relevant to the investigation. The more evidence there is to review, the longer the investigation will take to complete. The average investigation takes around 10 months, so be patient and cooperate with the EEOC during this process.
The EEOC will let both you and your employer the results of their investigation once it is complete. If the agency does not find any evidence of discrimination, they will issue you a legal document known as the notice of right-to-sue. This document allows you to file a lawsuit independent of the EEOC.
If the EEOC confirms that you were discriminated against because of your national origin, race, or color, they will begin settlement talks with your employer. These talks are not always successful—and if the EEOC fails to reach a settlement, the case is transferred to the agency’s legal department. The EEOC’s lawyers can choose to either file a lawsuit against your employer or allow you to do it by issuing you a notice of right-to-sue.
What happens after you are given the notice of right-to-sue?
You cannot file a discrimination lawsuit against your employer until you have been issued the notice of right-to-sue. Once you have it, immediately begin to look for an employment law attorney who has experience representing undocumented workers. These are unique cases that should not be trusted with an inexperienced attorney.
Remember, employers do not have the freedom to treat undocumented immigrants in any way that they please. If you believe you have been discriminated against, don’t hesitate to seek justice.