Monday, May 22, 2017

Discrimination and Reverse Discrimination Based upon Immigration Status, Citizenship and/or National Origin -- An Overview of the Rights of Undocumented Aliens and American Citizens to Compete for Work

Philadelphia Area Willful Misconduct Unemployment Attorney Who Represents Claimants
Representing Pennsylvania's Workforce Since 1991
Questions?  John will spend 5-10 minutes with you discussing your current work situation, your disability/FMLA leave, your non-compete agreement, your wage claim, your unemployment claim or your potential lawsuit at no charge to you.  Call 610-647-5027.  John is usually available 24/7.

You may also Click Here to e-mail John directly.

A Company Refused to Hire Me Because of my Citizenship or Immigration Status – Is That Illegal Under United States Laws Such as the Immigration Reform and Control Act (IRCA)?

The Immigration Reform and Control Act (IRCA) is a federal law enacted in 1986 that protects workers from discrimination based on immigration or citizenship status. IRCA makes it illegal to discriminate on the basis of national origin or citizenship when making decisions relating to the hiring, promotion, demotion, disciplining and/or firing of an individual. 

Truth be Told, We Are All Immigrants
IRCA also makes it illegal for companies to require more exacting work papers than ordinarily sought from applicants/new hires (i.e. papers required for verification of identity, citizenship).

As with all civil rights laws, IRCA prohibits adverse employment actions (i.e. threats, demotion, failure to promote, termination) that are undertaken as retaliation against an individual who asserts his/her rights under the statute. 

For a very detailed analysis of IRCA and some early cases decided thereunder, Click Here to jump to the American Immigration Lawyers Association 1998 – 99 Immigration and Nationality Handbook, authored by Andrew M. Strojny, Esquire.

Should be Enough Proof
My Employer Fired Me Because of my Citizenship or Immigration Status – Is That Illegal Under United States Laws Such as the Civil Rights Act of 1964 (Title VII)?

Under Title VII, discrimination based upon national origin is illegal (as is discrimination based upon race, color, sex or religion). However, if the claim falls most directly under the auspices of Title VII, that statute controls. In this context, one must carefully determine the distinctions between National Origin and Citizenship – for only a single administrative Charge with either OSC or EEOC is permitted.   

NOTE: IRCA may be used only for employers with between 4-14 employees; if the employer has greater than 15 employees, Title VII must be the basis for the Charge. See Yefremov v. N.Y.C. Dept. of Transp.

That said, a filing with OSC is understood to be a constructive simultaneous filing with EEOC and vice versa. Curuta v. U.S. Water Conservation Lab, OCAHO Case No. 92B00142

Do Title VII and IRCA Apply to all Companies and Employers? What Is My Deadline for Filing a Charge of Discrimination Under Title VII or IRCA Based Upon Discrimination Because of my National Origin, Citizenship and/or Immigration Status?

Title VII applies to workplaces that have 15 or more employees.

IRCA covers employers with between 4 -14 employees.

So, while Title VII protects employees of larger companies, IRCA attacks employees of very small companies.

You Have 300 Days to File a Charge of
National Origin Discrimination With EEOC
As with any allegation of discrimination governed by Title VII, and individual has 300 days to file a Charge of Discrimination (“Charge”) with the EEOC. So, for example, if you believe that you were laid off from work or rejected from higher due to your citizenship, you have to file a Charge with the EEOC within 300 days of the termination or rejection.

Many state laws also prohibit discrimination based on citizenship. In Pennsylvania, the Pennsylvania Human Relations Act includes such a prohibition. In order to obtain protection under the PHRA, one must file a Charge within 180 days.

One may dual-file with EEOC and PHRC at the same time without necessity for filing two different Charges.

Only Investigate Employers With between 4-14 Employees

Under IRCA, one has 180 days to file a claim with the United States Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (“OSC”).
Failure to file a Charge with the appropriate agency within the appropriate timeframe will result in a loss of rights to prosecute a claim of discrimination.

Can I File a Lawsuit Under IRCA? Is There a Private Right of Action Under IRCA?

Once a charge is filed with OSC, it makes a decision as to whether it wants to issue and prosecute a complaint on behalf of all the charging party. If it elects not to do so within the 120 days allotted to it under statute, which is often the case, the individual then has a right to file a lawsuit directly with the federal district court sitting in the appropriate jurisdiction (and must do so within 90 days of being informed of OSC’s decision not to prosecute). Hence, the IRCA administrative process is similar to that employed under title VII, although OSC has jurisdiction over the charge as opposed to EEOC.

My Company Laid Me Off and Kept Undocumented Illegal Workers – Is That Illegal Discrimination? What is Reverse Discrimination?

When IRCA was originally enacted, there was significant concern that the law would result in favoritism of aliens over United States citizens. Obviously, this type of concern has only grown over the years and is at times reached a fever pitch.

Prosecuting a claim that one has been discriminated against because of one citizenship, which often takes the form of allegations that undocumented workers were retained while American citizens were laid off, is known as a claim of “reverse discrimination.” In essence,  reverse discrimination occurs when a law designed to protect a minority is utilized in such a way as to favor the minority to the detriment of the majority.

There can be little doubt that a claim of reverse discrimination will lie under IRCA or Title VII. That said, proving discrimination, reverse or otherwise, is always challenging.  

Click Here if you Have Questions About Whether You Are Being Paid Properly When Working on an HB-1 Visa? 

Philadelphia Discrimination, Harassment and Retaliation Attorney Helping Employees Collect Wages, Compensation, Bonuses and Severance on a Contingent Fee Basis Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 
 John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Sexual Harassment and Hostile Work Environment Lawyer Provides Free Telephone Consultations and Contingent Fee Representation

If you are owed money by your employer, are looking for a contingent fee lawyer who is experienced in suing employers who engage in or permit discrimination, retaliation, sexual harassment or hostile work environments, and live or work in Lower Pottsgrove, Lower Providence, Lower Salford, Malvern, Marcus Hook, Marlborough, Media, Merion, Merion Station, Methacton, Middletown, Montgomeryville, Morgantown,  Morton, Nether Providence, New Hope, Newtown, Newtown Square, Norristown, Northampton, North Wales, Norwood,  Nottingham, Oakmont, Oaks, Oxford, Paoli,Parkesburg, Pennsbury, Perkasie, Perkiomenville, Phoenixville, Plymouth, Plymouth Meeting, Plymouth Whitemarsh, Pocopson,  Pottstown, Prospect Park, Quakertown, Reading, Red Hill, Ridley Park, Roxbury, Royersford, Salford, Schnecksville, Schuylkill, Selinsgrove, Sellersville, Sharon Hill, Skippack, Souderton, Southampton, Southeastern, Spring City, Spring House, Springfield, Sumneytown, Susquehanna, Swarthmore, Tamaqua, Tannersville,Telford and their surrounding areas, consider calling the Gallagher Law Group.

Need an Experienced Contingent Fee Lawyer to Sue Your Ex-Employer for Discrimination, Retaliation, Sexual Harassment or Hostile Work Environment?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

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