Immigration has been at the forefront of news reports and court cases recently, and has already proven to be a hot button issue for the 2020 election candidates to debate. As we move closer to the election, such political conversation may find its way into the office. If it does, employers should ensure that they know what is and is not permitted commentary and actions with respect to individuals who are not U.S. citizens or are of a different national origin.
As you are likely aware, the New York City Human Rights Law (NYCHRL) prohibits discrimination, harassment and retaliation on the basis of, among other protected categories, actual or perceived “alienage and citizenship status” and “national origin.” Citing various statistics to support that New York City is one of the most diverse cities in the world, the NYC Commission on Human Rights (the Commission) released enforcement guidance and a fact sheet, emphasizing that fighting national origin and immigration status discrimination is a priority of the Commission.
The guidance recognizes that while employers are required, pursuant to federal and/or state law, to ask certain questions about citizenship, including for verification of employment authorization, once an employer has hired an individual, that individual enjoys the same protections under the NYCHRL as any other employee, regardless of his/her/their perceived or actual immigration status or employment authorization. The enforcement guidance cautions against not just disparate treatment, but also disparate impact on the basis of citizenship status and national origin (for instance, a policy that only passports are accepted for identification for all employees). The guidance illustrates examples of prohibited conduct against individuals based on their immigration status and national origin, including but not limited to:
- Demanding certain work authorization documents prior to an individual accepting an employment offer; demanding specific documents other than those on the List of Acceptable Documents on the federal I-9 form to establish authorization to work; and refusing to accept documents that have an expiration date.
- Targeting only certain applicants for questions related to work authorization based on actual or perceived immigration status or national origin.
- Taking an adverse action against an employee or requiring reverification for work authorization in response to a “no match” letter from the Social Security Administration.
- Prohibiting workers from speaking a language other than English based on customer preference or image concerns, and using such terms as “illegal or illegal alien” with the intent to demean, humiliate or offend.
- Threatening individuals with actions related to their citizenship status, for example, not sponsoring them for their next visa or calling ICE.
- Acting on stereotypes or assumptions based on actual or perceived immigration status or national origin, such as making assumptions based on English proficiency, the presence of an accent or the use of another language.
The guidance also advises employers how to prepare for worksite immigration enforcement, whether in the form of an ICE inspection or an I-9 audit. For example, unless otherwise expressly prohibited (such as during an ongoing criminal investigation), the Commission encourages employers to give notice to employees when employers know or suspect that an audit or raid will occur, in order to provide employees with an opportunity to update any necessary documents and make other preparations.
The takeaway for employers is that although a topic may be debated in politics, New York City law provides non-U.S. citizens and undocumented workers with the same rights as employees who are U.S. citizens, and employers need to ensure that all employees are being treated equally, regardless of citizenship status or national origin. Employers in New York City should also review their anti-discrimination policies and ensure that personnel, including but not limited to managers and hiring staff, are familiar with the requirements of the law.