Discrimination Based on Immigration Status is Illegal

In America, we often debate about what rights immigrants have and don’t have. People debate whether constitutional rights apply to immigrants and whether they get due process or whether they get public benefits.

Whatever side of that debate you are on, one thing that employees should be aware of, is that your status in this country when it comes to immigration, does not affect your rights when it comes to employment.

The employment law rights that extend to employees, protect all people, whether immigrants or not, and regardless of immigration status.

Immigration Status Can’t be Used Against You

In fact, if an immigrant were to file a lawsuit for any type of employment discrimination or harassment, California law makes it illegal to inquire about the employee’s immigration status, or to make it an issue in the case, unless there is a “clear and convincing” showing that it has some relevance to the issues in the case.

This is an important protection—many employers will try to threaten immigrant employees, to get them to walk away from potential discrimination or wrongful termination lawsuits. Even the threat to report you to the government for immigration status, itself is illegal. Your employer can never use your immigration status to gain leverage against you, to deter you from asserting your employment law rights.

No Discrimination Based on Immigration

In fact, not only can you bring a lawsuit for any kind of harassment or wrongful termination at work regardless of your immigration status, but it is actually illegal in California for you to be discriminated against, because of your immigration status. California treats discrimination on the basis of immigration status, as a form of discrimination based on nationality or national origin—a long protected class.

To show discrimination based on an employee’s immigration status, the employee must show that the employee is an immigrant, that the immigrant did his or her job in a satisfactory manner, and that other employees, who were not immigrants, were treated differently or better than the immigrant.

The only time an employer can discriminate on the basis of immigration status, is when doing so is required to comply with federal law (in other words, it is legal to discriminate against an immigrant by not hiring him if he legally is not allowed to work in the US because of immigration status).

Hidden Forms of Discrimination

The law also prohibits employers from doing things like making fun of an immigrants language or accent, or making jokes about an immigrants status as an immigrant, or threatening, seriously or not, to deport an immigrant.

Sometimes, English-only speaking policies or requirements may constitute immigration discrimination, and even requiring dress codes that may prohibit an immigrant from wearing clothes that reflect the immigrant’s culture (assuming the workplace otherwise has a casual, “wear what you want” dress code).

Questions about your rights in the workplace? Contact the San Jose employment lawyers at the Costanzo Law Firm today.

Sources:

calcivilrights.ca.gov/wp-content/uploads/sites/32/2020/10/Immigration-Rights-Fact-Sheet_ENG.pdf

attorneyatlawmagazine.com/latest-articles/which-labor-code-section-addresses-immigration-discrimination