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Immigrant Employees? Protect Your Business from Discrimination Claims

January 2013

By: Ryan M. Helgeson, Esq.

In today's global economy and workforce, many businesses employ workers of various nationalities and ethnic backgrounds. While a diverse workforce is integral to a successful company, it also presents challenges. One of these challenges is protecting your business from employment discrimination claims. Proper personnel management and awareness of your immigrant employees' rights under state and federal anti-discrimination laws will go a long way to reducing exposure to liability.

What you should know about national origin discrimination under the Illinois Human Rights Act and Title VII

The Illinois Human Rights Act protects people against employment discrimination on the basis of their national origin or citizenship status. Title VII is the federal law which protects against employment discrimination based upon national origin. National origin discrimination may take many forms. Awareness of the potential forms of national origin discrimination will help protect your business from liability. Following are examples of employment discrimination based on national origin:

1) Discrimination because of a person's or his or her ancestor's place of birth may include discrimination because of person's looks, customs, or language. A claim may arise if a person is discriminated against for having the characteristics of a specific group.

2) Discrimination based on association with persons of a different national origin group. The law prohibits discrimination because a person associates with people of a national origin group - this could include attendance at certain schools or places of worship, or because their or their spouse's name is associated with a particular national origin.

3) Practices having an adverse effect on particular national origin groups. Some employment practices, such as citizenship requirements or minimum height requirements may screen out people of a particular national origin. These practices are against the law unless the employer can demonstrate that they are related to the job and needed for the employer to operate safely or efficiently.

4) Harassment based on national origin. Ethnic slurs and other verbal or physical conduct because of nationality are illegal if they are severe or pervasive and create an intimidating, hostile, or offensive working environment, interfere with work performance, or negatively affect job opportunities.

5) Discrimination based on accent. Treating employees differently because they have a foreign accent is lawful only if the accent materially interferes with being able to perform the job.

6) English-only rules. Rules requiring employees to speak only English in the workplace violate the law unless they are reasonably necessary to the operation of the business.

7) Discrimination Based on Appearance. Discrimination based on a person's ethnic appearance or cultural dress violates the law.

Protecting against discrimination based upon Citizenship Status

The Illinois Human Rights Act and the Immigration Reform and Control Act of 1986 ("IRCA") expressly prohibit discrimination based on citizenship status. IRCA also prohibits discrimination on the basis of national origin (as described above) by employers with between four and fourteen employees - employers with fifteen or more employees are covered by Title VII.

Examples of prohibited citizenship discrimination under the Illinois Human Rights Act and IRCA include:

1) "U.S Citizen only" policies which discriminate against legal resident aliens authorized to work in the United States;

2) "Green card only" policies which discriminate against legal resident aliens authorized to work in the United States who do not have a "green card;"

3) Requiring applicants for employment to provide certain specific or additional work authorization documents, rather than accepting any of the several forms of documentation an applicant is permitted to submit under IRCA.

If your business is confronting national origin or other type of employment discrimination claims, consultation with an attorney is strongly recommended. If you have questions regarding discrimination against immigrant employees or any other employment immigration question, please contact Attorney Ryan Helgeson at (630) 377-1554 or at ryhelgeson@wesselssherman.com.