It is no secret that in this day and age, there is endemic prejudice and discrimination aimed at undocumented immigrants, from interpersonal interactions to employment opportunities. Documented immigrants (in other words, those in the country with valid visas) experience very similar mistreatment, even though they have complied with all necessary laws and hold all the appropriate papers. It’s important to understand immigrant discrimination laws and options you may be able to pursue in the face of discrimination.
Definitions and Clarifications
Discrimination is a somewhat convoluted concept even though the average layperson might believe it very easy to understand. The Equal Employment Opportunity Commission (EEOC) defines it as treating someone unfavorably because they are from (or are perceived to be from) a certain part of the world or have the mannerisms of someone from that part of the world. It is still considered discrimination even if the person targeted does not actually hold that nationality or ethnicity. For example, a woman with a surname common in Arab families might be mistreated due to the mistaken belief that she was of Palestinian origin, despite being Lebanese in reality. She would still have a case for discrimination based on national origin, even if it might be the wrong origin.
As with many other potential discrimination issues, Title VII of the Civil Rights Act of 1964 and the South Carolina Human Affairs Law both prohibit any kind of unequal treatment in employment, hiring, firing or any other associated action. If you believe you have experienced this type of discrimination, you may file a charge with either the EEOC or the South Carolina Human Affairs Commission (the two bodies have a working relationship, so the requirements to show discrimination will be largely the same under either agency’s investigative aegis). The agency may elect to handle the matter, or it may grant you clearance to sue your employer in civil court.
The Issue of Language Proficiency
One important caveat is relevant in detailing discrimination against immigrants in the workplace, and that is the issue of language proficiency. While it is not lawful to perpetrate any type of employment discrimination against someone merely because they speak with an accent or are not a native speaker, it is lawful to decline to hire a person if it can be demonstrated that English language proficiency ( or any other language proficiency) is a bona fide occupational qualification (BFOQ). A bona fide occupational qualification is a characteristic that can be shown to be an integral part of being able to perform a certain job’s functions. It is one of the few defenses permitted against admitted discrimination, and it can apply to issues such as age as well as national origin (though not to race).
For example, a tax assistance company like H&R Block that was seeking to hire more employees might credibly claim that speaking at least a semi fluent level of English is a bona fide occupational qualification because a failure to communicate tax consequences to customers in fluent English could create serious problems for those customers. In addition, making mistakes due to poor language proficiency could conceivably open the company up to liability if their advice leads to customers owing more on their taxes. In such a case, English proficiency could plausibly be alleged to be a BFOQ, though it would likely be up to a court to decide the issue ultimately.
Contact An Employment Law Attorney
Immigrants need to support their families just as U.S. citizens do, and very often, they are inhibited in their quest to do so by misguided and fearful prejudices. If you believe you have subjected to an instance of discrimination against immigrants in the workplace, consulting an attorney can help you decide what to do next. Attorney A. Christopher Potts can sit down with you and attempt to help answer any questions about your potential case. Contact our North Charleston office today to set up an appointment.