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Proving National Origin Discrimination

In today’s political climate, it is sadly common to see immigrants and workers of foreign origin being cast as the villain in any number of situations. However, despite popular perception, immigrants have rights, even if they are in the country without documentation. If an employer mistreats you and you believe that it may be due to your national origin, there are specific laws you can point to in bringing an EEOC charge or a full lawsuit against them. Here’s what you need to know about proving national origin discrimination.

The Form I-9 Process May Be Instructive

When a person is being interviewed and vetted as a potential employment candidate, the first step in doing so is to examine their Form I-9. This form is mandatory for anyone seeking work in the U.S. (even citizens), and it must be presented to the potential employer along with certain documents that must prove both identity and employment authorization. Some may submit documents that prove both – for example, citizens may submit their U.S. passport, which proves both who they are and their eligibility for work in the country. Someone who does not have a passport might submit other acceptable documents from the list, and may wind up submitting multiple documents, such as one to prove identity and one to prove employment authorization.

Some employers have been known to request more information than is strictly permissible, especially if they are dealing with applicants they know are non-U.S. citizens. This is a violation of federal employment antidiscrimination laws, according to U.S. Citizenship & Immigration Services (USCIS), which states that unless a document is unrelated to the person presenting it, or it “does not reasonably appear to be genuine,” an employer must accept it. An employer may not pick and choose, and if yours does, it may be actionable even if they still hire you.

De Jure & De Facto Discrimination Both Count

Something that many people do not grasp is that intent to discriminate is not necessarily relevant in terms of whether an employer can be held liable or not. If an employer has a set policy of excluding immigrants or excluding any group based on an impermissible characteristic (“de jure” discrimination), this is obviously unacceptable. However, sometimes a policy may not explicitly exclude a group of people, but in practice, does so anyway. This is called “de facto” discrimination. If an employer is found to have allowed this, they can be held responsible for national origin discrimination regardless of intent.

A case that is instructive is Yick Wo v. Hopkins (1886). While the case is old, its main point is still relevant. Laundries in San Francisco were required to have permits, but none of the city officials would grant a permit to a Chinese person business due to racism, even though Chinese people operated approximately 9 of every 10 laundries in town. The suit was decided at the Supreme Court level, and the justices held that even though San Francisco’s law was neutral on its face (in other words, giving no preference to any racial group), in practice it permitted discrimination against Chinese people, which was considered a violation of not only employment-based laws, but also of the Equal Protection Clause of the 14th Amendment to the Constitution.

Contact An Experienced Attorney

It can be difficult to prove that you are a victim of national origin discrimination, even if you have the feeling that it is going on. Speaking to a lawyer can help you decide what to do about it. Attorney A. Christopher Potts and his Charleston employment discrimination firm are well versed in this area of law and can help you decide where to go from here. Contact our office to set up an initial consultation today.

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