Immigration Status Discrimination

An estimated one out of ten workers in California (an estimated 1.75 million individuals in all) is an undocumented (also known as illegal or unauthorized) immigrant. Source: Public Policy Institute of California. Fortunately, with some exceptions, this large segment of the workforce enjoys the legal rights and remedies provided by Federal and California employment and labor laws. Despite the fact that most immigrants are not native citizens of the United States of America, the Constitution itself entitles them to many of the same rights as American citizens, and the employment and labor laws of California reflect that.

One important protection is the right for a worker to be free from discrimination based on the worker’s immigration status.

Employers may not discriminate against employees on the basis of their immigration statuses: "All protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or have been employed, in this state." California Labor Code section 1171.5(a). This fundamental protection afforded by the State of California is expressed not only in the California Labor Code, but also in section 3339 of the California Civil Code; section 7285 of the California Government Code, and section 24000 of the California Health and Safety Code.

Bottom line, it is the public policy of the State of California that when a worker seeks protections under state labor and employment laws, his or her immigration status is not generally relevant to the issue of liability. Historically, when an undocumented worker brought a claim for violation of labor or employment laws, unscrupulous employers, and sometimes their legal counsel, would bring up the immigration status of the employee for nefarious reasons, such as to intimidate or otherwise scare the worker into abandoning his or her claim for fear that pursuing the claim would result in their arrest for violation of immigration law. Fortunately, California law now only permits inquiries into a worker’s immigration status during the course of a lawsuit if it is shown to be relevant to the particular case by the higher burden of proof of “clear and convincing evidence” (highly probable to be relevant), as disclosure of a plaintiff’s immigration status could be highly prejudicial to his or her case (e.g. jurors looking unfavorably on the plaintiff’s case because the plaintiff is an undocumented worker and a foreigner and a perceived lawbreaker). California Labor Code section 1171.5(b); California Civil Code 3339(b).

By way of background, in 2002, the United States Supreme Court in Hoffman Plastic Compounds Inc. v. NLRB(2002) 535 U.S. 137, held that undocumented workers who were victims of unfair labor practices were precluded from receiving an award of backpay because such an award runs counter to the federal Immigration Reform and Control Act of 1986 (IRCA), which makes it illegal for an employer to knowingly hire any individual unauthorized to work in the United States. Since the workers in the case were never legally authorized to work in the United States, awarding backpay to undocumented immigrants would contravene the IRCA and encourage violations of immigration law. However, although the workers in question were not entitled to backpay, other significant sanctions were imposed on the defendant employer for its unfair business practices. In response to Hoffman, the California Legislature enacted California Labor Code section 1171.5 and other statutes to limit the potential effects of the Hoffman decision of undercutting state remedies for illegal labor practices afforded by California labor and employment laws, such as the requirement to pay all workers at a rate of no less than minimum wage.

California Labor Code section 1171.5 leaves "no room for doubt about this state's public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights and employee housing laws." Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460, disapproved on other grounds.

To bring a claim for discrimination based on an employee's immigration status, the plaintiff needs to prove that:

• the employee is an immigrant from another country,
• that the employee's job performance was satisfactory,
• than minimum wage and not receiving legally compliant meal and rest periods because the employer knew of the employee’s immigration status and assumed the employee would not contest the unlawful conduct for fear that this would make the employee conspicuous to immigration authorities)
• and that other employees who were not immigrants were not subjected to the discriminatory actions of the employer.

The California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, forbids two types of discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her immigration status (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on immigrant employees (referred to as disparate impact discrimination). Knight v. Hayward Unified School District (2005) 132 Cal.App.4th 121, 128-29 (discussing disability discrimination).

Aside from obvious cases where an employer outright explains to an immigrant employee that he is demoting her or reducing her pay due to her immigration status, discrimination may also be inferred from the circumstances surrounding the act that adversely affects the employee’s rights or interests. For instance, if an employer reduces the hours of an immigrant employee solely because she was unable to read English phrases at a fast enough rate, the employer may have discriminated against the employee for an issue related to her citizenship or immigration status. To be successful on the claim, however, the employee would probably have to show either that reading English at a particular rate was not a skill central to the performance of the job for which she was hired or that she would have been able to read at the required rate given sufficient training.

Examples of possible claims of discrimination related to immigration status or national origin or ancestry, include:

• English-only policies at work,
• An employer, by requiring employees who are non-English speakers to only speak English while at the workplace, discriminated against those non-English speakers and essentially prohibited them from speaking on the job whatsoever. Garcia v. Spun Steak Company (9th Cir. 1993) 998 F.2d 1480, 1488.
• However, rules against the use of foreign languages at the workplace may be upheld if there is a legitimate business necessity and the employees have notice. California Government Code section 12951(a).
• Discrimination based on a person's accent,
• Raad v. Fairbanks North Star Borough School District (9th Cir. 2003) 323 F.3d 1185, 1195.
• Dress codes at work that discriminate against a person's ethnic dress. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional East Indian or African attire, but otherwise permits employees to dress casually, would have the effect of treating some employees less favorably because of their national origin or immigration status.

If you have experienced discrimination at your workplace based on your immigration status, of if you believe your employer or ex-employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.