National Origin Anti-Discrimination Practices

The Fine Line Employers Must Walk When Hiring and Firing

National origin anti-discrimination practices come into play when an employer is hiring job applicants. While employers cannot hire undocumented immigrants, they also must not discriminate based on national origin.

Immigration Reform and Control Act of 1986 (IRCA)

According to the IRCA, employers have to verify the work eligibility of employees. Yet IRCA has anti-discrimination provisions that prohibit hiring or firing based on citizenship or national origin status.

Some individuals receive protection under the IRCA. Classes of workers protected against discrimination include:

  • S. citizens and nationals
  • Lawful permanent residents (green card holders)
  • Refugees
  • Asylees

Navigating the fine line about what you can and cannot ask can be challenging.

What You Can and Cannot Ask Job Applicants

You cannot treat employees in the above classes differently based on their place of birth, country of origin, ancestry, native language, accent or appearance.

Here are questions you can ask, according to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC):

  1. Do you now, or will you in the future, require sponsorship (e.g., H-1B visa status, etc.) to work legally for (company name) in the United States?
  2. If you will require sponsorship, do you currently hold Optional Practical Training (OPT)?
  3. If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based upon a degree from a qualifying U.S. institution in Science, Technology, Engineering, or Mathematics (STEM), as defined by Immigration & Customs Enforcement?

The employer could not ask only one question but would have to ask the applicant all three of the above questions.

Deciding you would not hire an applicant based on the above three questions would not be considered national origin discrimination.

Do You Have Concerns About Avoiding National Origin Discrimination?

If you have questions about your legal rights as an employer, you should get a legal opinion. Discuss your concerns about avoiding discriminatory hiring and firing with Stephen D. Hans & Associates, P.C. Call (718) 275-6500.