Despite a slight dip in the number of sexual-harassment charges filed last year, the monetary benefits of sexual-harassment cases settled by the Equal Employment Opportunity Commission (EEOC)—excluding the awards obtained through litigation—was nearly $70 million. This was much higher than in previous years, showing that the #MeToo movement continues to make changes in the workplace.
The monetary benefits from the agency’s sexual-harassment settlements have steadily risen over the past four years:
The number of sexual-harassment charges filed with the EEOC dipped slightly in fiscal year 2019 from 2018 levels but remained much higher than in the immediately preceding years:
The number of sexual harassment charges were at a high level before that, though they dropped from the beginning of the 2010s:
One in 10 of all charges filed with the EEOC last year alleged sexual harassment. More than half claimed retaliation, and nearly a third alleged disability, race or sex discrimination. One in five charges involved reported age discrimination, while one in 10 charges claimed national origin discrimination. The percentages add up to more than 100 percent because some charges allege multiple bases.
We’ve gathered articles on the #MeToo movement from SHRM Online and other trusted media outlets.
#MeToo Had ‘Significant Impact’ on Harassment Filings in 2018
The number of sexual harassment charges filed with the EEOC jumped 13.6 percent in 2018. “We cannot look back on last year without noting the significant impact of the #MeToo movement in the number of sexual harassment and retaliation charges filed with the agency,” said then EEOC acting chair Victoria A. Lipnic, who is still a commissioner. The movement started in 2017 after The New Yorker published an article about allegations against movie mogul Harvey Weinstein. But the total number of charges dropped below 80,000 for the first time since 2006. That trend is likely a reflection of the strong economy, said John F. Lomax Jr., an attorney with Snell & Wilmer law firm in Phoenix.
Defamation Lawsuits on the Rise
Plaintiffs who allege sexual misconduct are increasingly suing for defamation if the defendant criticizes their character. Meanwhile, more defendants are suing their accusers for defamation. Defamation cases are, nonetheless, difficult to win, particularly with public figures.
The attorneys of Harvey Weinstein—who is accused of harassment, assault or rape—are reportedly going to discredit his accusers in court and through the press. The prosecution wanted a gag order to prevent Weinstein’s attorneys from doing this. A judge denied the motion but criticized the lawyers for disparaging witnesses.
Companies that sell employment practices liability insurance (EPLI) are seeking higher deductibles or restricting coverage for companies in such high-risk industries as entertainment, according to a survey released at the end of last year. “Insurance companies have cut back on their willingness to take chances,” said Richard S. Betterley, an insurance consultant.
In the wake of the #MeToo movement, many states have strengthened their anti-discrimination laws and developed more-robust workplace sexual-harassment prevention training requirements. HR professionals and organizational leaders should treat the eruption of such mandates as an opportunity—not an obligation, said Glen Kraemer, an attorney with Hirschfeld Kraemer in Santa Monica, Calif., speaking at the Society for Human Resource Management 2019 Annual Conference & Exposition.
Author’s note: CAP uses “Black” and “African American” interchangeably throughout many of our products. We chose to capitalize “Black” in order to reflect that we are discussing a group of people and to be consistent with the capitalization of “African American.”
The U.S. labor market has now seen a record 109 months of uninterrupted job growth, with the overall unemployment rate falling to its lowest level in 50 years. (see Figure 1) However, African American workers still face more hurdles to get a job, never mind a good one, than their white counterparts. They continue to face systematically higher unemployment rates, fewer job opportunities, lower pay, poorer benefits, and greater job instability. These persistent differences reflect systematic barriers to quality jobs, such as outright discrimination against African American workers,1 as well as occupational segregation—whereby African American workers often end up in lower-paid jobs than whites2—and segmented labor markets in which Black workers are less likely than white workers to get hired into stable, well-paying jobs.3 Despite African American workers having increased access to jobs and actually getting more jobs, labor market outcomes—including higher unemployment and fewer good jobs—continue to be worse for African American workers and their families.
These differences are not new, and the longest labor market expansion on record has not eliminated them. African Americans have always been more vulnerable in the labor market. They regularly experience higher unemployment rates and work in worse jobs, which feature lower pay and fewer benefits, than whites. Moreover, they tend to work in jobs that are less stable than those held by white workers. For example, African American workers often see their unemployment rates go up sooner than white workers when the economy sours, and their unemployment rates also take longer to decline when the economy improves than is the case for whites—a phenomenon often described as “last hired, first fired.” Moreover, unemployed Black workers look longer to find and secure a new job than do white workers.
The labor market experience for African Americans has historically been worse than that for whites, and this continues today. There are several factors that have contributed and continue to contribute to this. These include repeated violent oppression of African Americans such as the riots that destroyed Black business owners’ wealth on the Black Wall Street in Tulsa, Oklahoma in 1921, codified segregation, legal racial terrorism during the almost centurylong period from Reconstruction to the civil rights era, systematic exclusions of African Americans from better-paying jobs, and continued occupational segregation.4 Despite notable improvement, today’s Black workers still have a harder time than whites securing good employment. For Black women, the intersection of race and gender bias has had a combined effect on their labor market experiences, too often devaluing their work and confining their opportunities.
To close these persistent labor market gaps, African American families need more wealth to begin with. Wealth makes it easier for families to invest in their own futures. For example, wealth can be used to support both children’s and parents’ education, to start a business, to buy a house in a neighborhood with access to good jobs, and to move to new places when better opportunities arise. Each of these benefits gives families access to more and better jobs. People with a college degree typically have lower unemployment rates and greater access to well-paying, stable jobs with decent benefits; starting a business gives people more control over their own lives and thus the potential to avoid the uncertainty that can come from working for somebody else in a low-paying job with irregular hours; and buying a house closer to where good jobs are located makes it easier to switch jobs when one does not pan out as expected. Similarly, wealth allows families to move to a new location when jobs in one area decline or disappear altogether. Having less wealth makes all these benefits much harder to achieve for African Americans.
This issue brief examines African Americans’ and white workers’ labor market experiences in the current labor market expansion. The data summary looks first at differences in unemployment rates, followed by indicators of employment opportunities. The discussion then turns to measures of job quality, starting with wages, followed by benefits, and concluding with job stability. Regardless of the observed labor market outcome, African Americans always fare worse than whites, with Black women often experiencing the harshest impacts. Worse labor market outcomes—higher unemployment, fewer benefits, and less job stability—contribute in part to the growing racial wealth gap, leaving African Americans in a more precarious financial situation.
Black workers have higher unemployment rates than whites
African American workers regularly face higher unemployment rates than whites. There are several explanations for this. Blacks often face outright discrimination in the labor market.5 They also are less likely to attend and graduate from college, which stems from the fact that African Americans face greater financial barriers to getting a college education,6 ending up with more debt than white graduates and paying more for their loans.7 Yet even among college graduates, African Americans often face greater job instability and higher unemployment rates, as the data below show.
For a decade now, the unemployment rate has fallen, improving the labor market outlook for many groups along the way. The U.S. unemployment rate for all workers who are 16 years old and older was down to 3.5 percent in September 2019 from its peak of 10 percent in October 2019, reaching its lowest point in 50 years. (see Figure 1) Amid the improving labor market, the African American unemployment rate fell to a historic low of 5.5 percent, and the rate for whites reached a 50-year low of 3.2 percent at the same time. More importantly, the unemployment rate for prime-age workers—those who are ages 25 to 54—fell to an average of 5.2 percent for Black workers and an average of 2.8 percent for whites for the period from November 2018 and October 2019.8 This was the lowest unemployment rate on record for Black prime-age workers dating back to 1973 and the lowest for white prime-age workers since 2000. (see Figure 2)
The trend toward ever-lower unemployment rates should not obscure the fact that African Americans systematically suffer higher unemployment rates than whites, even in a good labor market. The unemployment rate for Black workers remains higher than that for white workers even when looking at subpopulations. The data further show that African Americans typically face higher unemployment than whites regardless of age, gender, education, and veteran status. (see Figure 3)
Regardless of educational attainment by Black workers, they typically have a higher rate of unemployment than their white college-educated counterparts. Among college graduates, for example, the Black unemployment rate averaged 2.8 percent from November 2018 to October 2019, 40 percent higher than the 2 percent rate for white college graduates in the same period. (see Figure 3) While college attainment helps all workers get more access to better-paying, stable jobs with better benefits, the advantages are not evenly distributed. Black workers, no matter their level of education, still face impediments in the labor market—employment discrimination, occupational segregation, and unequal pay.
Black women are caught between bad jobs and widespread financial burdens
Black women face unique burdens in the labor market. They are more likely to work than white women: 84.4 percent of Black mothers are breadwinners, which represents a larger share than for any other racial or ethnic group.9 Black women also often shoulder disproportionate financial burdens due to caregiving responsibilities for children, grandchildren, and aging parents.10 Moreover, Black women have a much harder time finding a job than white women and white men. The employed share of Black women was 57.2 percent in September 2019, slightly higher than the 55.2 percent of white women with a job. (see Figure 3) Yet their unemployment rate was 5.1 percent in September 2019, much higher than the 2.7 percent of white women who were out of work and looking for a job during that same period.
African American women also work in lower-paying jobs than Black men or white women, which translates to a particularly steep pay gap for Black women. Among those who worked full time all year in 2018, Black women earned 61.9 cents for every dollar that white men earned. In comparison, Black men earned 70.2 cents for every dollar earned by white men, and white women earned 78.6 cents.11 African American women are also more likely than white women to juggle caregiving responsibilities for family members such as children and grandchildren.12 The lack of access to jobs in general, and to good jobs in particular, further exacerbates the financial challenges of these responsibilities. In the same vein, getting more education shrinks the wage gap but doesn’t close it, indicating that Black women face systematic obstacles in getting good jobs.13 Therefore, it is important to note that even obtaining a job, and sometimes a good job, is still not enough for Black women because of systemic barriers—sometimes rooted in race and gender bias—that drive how the U.S. economy values different types of work and the policies available to support women’s caregiving responsibilities.
Black workers have less access to jobs than whites
Importantly, the employed share of both prime-age Black and white workers was still below the peaks recorded in the late 1990s, suggesting that the labor market is not as strong as the unemployment rate shows. (see Figure 4) Moreover, there is a persistent racial gap. The employed share of prime-age Black workers stood at 75.7 percent from November 2018 to October 2019, while it averaged 80.8 percent for white workers in this age group. (see Figure 4) Even after a decade of labor market gains, Black workers face more impediments to finding work than is the case for white workers. Fewer job opportunities make it harder for people to save for their futures.
Black workers have fewer well-paying, stable jobs with decent benefits than white workers
The hurdles that African Americans face in the labor market from discrimination, pay inequality, and occupational steering are also apparent in indicators of job quality and not just in measures of job availability. Black workers, for example, typically get paid a great deal less than white workers. The typical median weekly earnings for Black full-time employees was $727 from July 2019 to September 2019, compared with $943 for whites. (see Figure 5) Comparing wages for men and women broken down by race and age again shows that these wage differences persist among full-time workers, indicating that massive gaps in economic security persist even when the labor market is strong. Lower wages for Black workers then translate into lower savings as families have less money left over after paying their bills.
African Americans also receive fewer employer-provided benefits than white workers. Only a little more than half of African Americans—55.4 percent—had private health insurance in 2018, compared with 74.8 percent of whites.14 Craig Copeland, a researcher at the Employee Benefits Research Institute, estimates that among full-time, year-round workers, African American workers were 14 percent less likely than white workers to have any type of retirement plan through their employer.15 Fewer workplace benefits make it harder for African Americans to save, since they face higher costs and less help in preparing for retirement than their white counterparts.
Not only do African Americans work for less pay with fewer benefits, they also face much greater job instability than whites. African Americans often work in occupations and industries that are economically less stable, such as retail services and parts of the health care sector including home health aides and nursing home workers. Moreover, African Americans tend to feel the fallout from a recession more intensely than do whites, as discussed below, and they then tend to be out of a job longer than other unemployed workers. (see Figure 6)
African Americans’ employment fluctuates more than it does for whites. The employed share of prime-age African American workers fell by 8.3 percentage points from 75 percent just before the Great Recession started in September 2007 to a low of 66.7 percent in October 2011. (see Figure 5) In comparison, the respective share of white workers dropped by only 4.5 percentage points, from 81 percent in November 2007 to 76.5 percent in July 2010.
Moreover, jobs for African Americans tend to disappear sooner when the economy sours and come back later when the economy improves—a phenomenon often described as “last hired, first fired.” The decline in prime-age employment rates associated with the Great Recession started two months sooner for African Americans than whites and lasted 15 months longer than it did for white workers. (see Figure 5)
Unemployed African American workers look longer for a new job than whites. From September 2018 to September 2019, the average length of unemployment for unemployed African American workers was 25.5 weeks, compared with only 20.8 weeks for unemployed white workers. (see Figure 6)
The racial wealth gap continues to grow
African American families need wealth to increase access to good job opportunities. For example, wealth increases the likelihood of people being able to support education for themselves and their children, as well as being able to move to areas with more and better jobs. Yet African American families own much less wealth than whites, and the gap has only widened in recent years. On average, Black families now own about one-fifth of the total wealth, including the imputed wealth of defined benefit pensions, owned by whites. Just before the Great Recession, this gap had shrunk to one-fourth. (see Figure 7). However, African American families lost more wealth during and after the financial and economic crisis of 2007 to 2009. (see Figure 7) This resulted in a widening racial wealth gap over the past decade.
Many factors will have to come together to overcome systematic obstacles that hinder African Americans’ ability to build wealth. A prolonged labor market expansion is a good start, but it is not enough, as the most recent data clearly show. More hiring has lowered the unemployment rate and created more employment opportunities, but African Americans are still more likely to be unemployed, have fewer job opportunities, get paid less, have fewer employer-sponsored benefits, and work in less stable jobs. All of these elements further widen the already large racial wealth gap.16
The U.S. labor market has been expanding for almost a decade, with workers of all races benefiting from this expansion. However, the progress has not erased systematic racial differences in labor market outcomes. African Americans still face persistently higher unemployment and have less access to good jobs than whites. These systematically different experiences in the labor market exacerbate the need for more wealth for African Americans but also make it more difficult to build that wealth in the first place. Making sure that Black workers have the same access to good jobs as white workers does not only require labor market policies but also new and innovative approaches to shrinking the racial wealth gap.17
Christian E. Weller is a senior fellow at the Center for American Progress and a professor of public policy at the McCormack Graduate School of Policy and Global Studies at the University of Massachusetts, Boston.
I defend employment litigation around the country.
The #MeToo movement gained momentum in early October 2017, when the hashtag went viral on social media following Alyssa Milano’s now-famous tweet, which led to responses from celebrities and ultimately resulted in an avalanche of allegations of sexual harassment and assault. The #MeToo Movement has, of course, impacted workplace dynamics, and companies have responded in various ways, such as by conducting investigations, modifying sexual harassment policies and providing more frequent and robust training of employees of all levels.
Given that sexual harassment claims can present serious reputational and financial risks to companies, questions are often raised as to the current state of the #MeToo movement—particularly with respect to its influence on the workplace. What sources can we look to in order to answer the question? There are a variety, but one notable source is year-over-year data on the rate of filings of sexual harassment charges with the U.S. Equal Employment Opportunity Commission, the size of recoveries in matters before the EEOC and determinations the EEOC has made.
So let’s consider the data the EEOC just released on these issues on January 24, 2019. A fair reading of that data suggests the #MeToo movement continues to press forward. Most notably, the data shows that the number of sexual harassment filings in fiscal year 2019 remains quite substantial but has dropped from the number filed in fiscal year 2018, and the amount of recovery for sexual harassment charges has increased from fiscal year 2018.
Let’s take a closer look at the data and then consider what it could mean in practical terms for companies.Today In: Leadership
Volume Of EEOC Sexual Harassment Charges
The EEOC recently released data that includes breakdowns for the 72,675 charges filed in fiscal year 2019 (which runs through September 30, 2019). Sexual harassment charges represented 10.3% of that overall number.
The number of sexual harassment charges filed in fiscal year 2019 was 7,514, whereas the number of such charges filed in fiscal year 2018 was 7,609. While not enormous, this drop is curious given that the #MeToo movement remained active in fiscal year 2019, with a number of high-profile cases. Notably, the number of claims in fiscal year 2019 is lower than those filed in fiscal years 2010 to 2012, but still higher from those in fiscal years 2014 to 2017.
Size Of Recoveries
While the number of sexual harassment charges dropped in fiscal year 2019, the size of the recoveries jumped up from $56.6 million in fiscal year 2018 to $68.2 million in fiscal year 2019. The size of the increase in recoveries becomes vivid when comparing fiscal year 2019 recoveries to those in fiscal year 2010 ($41.2 million) through fiscal year 2017 ($46.3 million).
How Complainants Are Faring Before The EEOC
Another interesting set of data points shows how complainants alleging sexual harassment fared before the EEOC in fiscal year 2019. As a preliminary matter, when reviewing the data, one should keep in mind that the EEOC does not issue determinations on all sexual harassment charges, and the data referenced below may reflect the fact that fewer sexual harassment were filed in fiscal year 2019.
Getting to the point, the EEOC issued fewer “no reasonable cause” determinations in fiscal year 2019 (4,297) than it did in fiscal year 2018 (4,501). Yet, the EEOC found that “reasonable cause” existed in fewer matters in fiscal year 2019 (356) than it did in fiscal year 2018 (430).
Notably, the data on reasonable cause findings during the life of the #MeToo movement shows there were fewer findings in favor of complainants during that time-frame than in fiscal year 2010 through fiscal year 2013 and an arguably similar number of findings in fiscal year 2014 through fiscal year 2016.
Charges Filed By Men
Additional data the EEOC just revealed shows that 16.8% of the EEOC charges filed in fiscal year 2019 were initiated by men, which is an increase in the 15.9% figure for filings by men in fiscal year 2018.
What Inferences Can We Draw?
The newly revealed EEOC data raises some important questions, including the following:
– Are plaintiff-side attorneys being more selective in choosing which cases to pursue?
– Have employee training programs—which many employers revisited when the #MeToo movement blossomed—become more effective?
– Is a larger swath of corporate America appreciating the risks that flow from sexual harassment claims and adjusting their conduct accordingly, while those who have not changed course have suffered more severe financial consequences?
– Are fewer claims being brought in the aggregate while more claims are being filed against higher-level managers or executives (which could engender greater recoveries)?
There are no clear answers to those questions. But it’s noteworthy that the volume of claims is still relatively high and the size of recoveries has jumped.
Also, can we draw any particular inferences from the fact that the EEOC has issued fewer reasonable cause findings while at the same time issuing fewer no reasonable cause findings? That’s a difficult question to answer as a general matter because each determination turns on the specific facts of the case. And a drop in reasonable cause findings does not fit neatly with the data showing that the size of recoveries has increased over the EEOC’s last fiscal year.
Last, the fact that more men have been filing sexual harassment charges suggests that the #MeToo movement has effectively raised awareness across the board.
All in all, the EEOC’s fiscal year 2019 data shows that despite a drop in charge filings over the EEOC’s last fiscal year, sexual harassment claims are still being filed at a meaningful rate and garnering significant recoveries. This may serve as at least one indicator that the #MeToo movement as it relates to workplace dynamics still has steam.
Conventional wisdom says workplace discrimination cases are difficult to prove because the acts of discrimination are subtle. As a result, victims of workplace discrimination generally have to pay thousands of dollars to retain an attorney.
For people of color, workplace discrimination may not be subtle but blatant and even violent. Supervisors and co-workers assume that these victims will not complain or will not be believed.
Many people of color, with textbook cases, have a difficult time finding an attorney. Some of these cases are compelling and could lead to sizable settlements. Nonetheless, attorneys are either not interested or require thousands of dollar in retainer.
Unfortunately, when a victim files an EEOC complaint, without the advice of an experienced attorney, the chances of their complaint being dismissed by EEOC is overwhelming.
Experienced attorneys, particularly those of color, should commit to helping these victims file EEOC complaints. For an initial $500 retainer, an experienced attorney could advise victims over the telephone and via e-mail in a manner similar to the way LegalZoom.com operates.
By Don Jacobson Protesters gathered outside the U.S. Supreme Court in 2018 to denounce its ruling to uphold President Donald Trump’s travel ban. File photo by Jim Lo Scalzo/EPA-EFE
Feb. 21 (UPI) — An expanded travel ban covering six new countries came into effect Friday under an executive order issued last month by President Donald Trump, who said the move is necessary to maintain U.S. security.
Under the order, people from Eritrea, Kyrgyzstan, Myanmar and Nigeria are banned from receiving immigrant visas, while those from Sudan and Tanzania are excluded from a lottery program through which a small number of visas are available each year for citizens of countries with historically low rates of immigration to the United States.
The proclamation was an expansion of an executive order Trump issued in 2017 limiting travel by people from six countries deemed security risks. That measure placed a ban on tourist or business visas for people from Libya and Yemen as well as a ban on Somalis traveling under immigrant visas.
The first version of the ban was criticized for targeting Muslim-majority countries and sparked a lengthy legal challenge. A modified version of the ban was upheld by the U.S. Supreme Court in 2018.
Critics contend the original ban as well as its extension are racist and xenophobic, ultimately hurting those from poor countries who would otherwise meet immigration criteria.
Administration officials say the countries added to the travel ban are failing to meet minimum “identity-management and information-sharing” criteria to prevent the movement of terrorists or are part of a “recalcitrant country” list — nations that refuse to take back their nationals when the U.S. wants to deport them.
Nigeria on Thursday appealed to Washington to remove it from the ban, citing the “long-standing relationship between the two countries.”
Nigerian Interior Minister Rauf Aregbesola met with U.S. Ambassador to Nigeria Mary Leonard in Abuja, promising closer cooperation with the United States to help address its concerns about Nigeria’s control over the issuance of visas, passports and other travel documents.
The House Judiciary Committee voted this month to advance the “No BAN Act,” which would repeal the administration’s travel ban and would limit the president from imposing future restrictions based on religion.
The measure advanced to the full House, but if passed there is expected to stall in the Republican-led Senate.
The president’s recent anti-immigration move is breaking up American families.
By The Editorial Board
February 17, 2020
A rational president, making decisions untainted by racial bias, would know that Nigerians are among the most successful and highly educated immigrant groups in America: 61 percent hold at least a bachelor’s degree. More than 1 in 3 Nigerian immigrants work in the US health care industry; compared to the general population, they’re also more likely to work in science, technology, and engineering fields.
Then there’s President Trump. Shown statistics about Nigerian immigration in the United States, he lamented in 2017 that once Nigerians were in the United States, they would never “go back to their huts” in Africa.
That ignorant, bigoted comment tells you everything you need to know about the administration’s latest immigration restrictions, which primarily affect African nationals and their US-based families. The administration has tried to rationalize the policy as a national-security move. But they’re not kidding anyone, and it shows why Congress needs to limit the president’s ability to issue sweeping bans affecting entire countries.Get Today in Opinion in your inboxGlobe Opinion’s must-reads, delivered to you every Sunday-Friday.Sign Up
As of Feb. 21, the president instructed the US Department of Homeland Security to bar citizens of Myanmar, Eritrea, Kyrgyzstan, and Nigeria, which has the largest economy in Africa, from seeking permanent admission to the United States. The order also bans citizens of Sudan and Tanzania from participating in the diversity lottery program, which issues green cards to as many as 50,000 foreigners annually. In a press release, DHS insisted that the new “restrictions do not reflect animus or bias against any particular country, region, ethnicity, race, or religion”; instead, they are the “result of these countries’ unwillingness or inability to adhere to our identity management, information sharing, national security, and public safety assessment criteria.”
It is a dramatic expansion of Trump’s previous attempts to bar Muslims and other foreigners. Yet this time, the main victims are American citizens. Unlike the previous travel bans, this new restriction does not apply to refugees, students, tourists, or visitors coming under temporary visas. But it will prevent nearly all parents, children, wives, husbands, and other eligible relatives of US citizens from applying for a green card. The new travel ban will hurt more than 336,000 naturalized US citizens, who won’t be able to reunite with relatives living abroad.
It’s hard to take the Trump administration’s argument for the new ban seriously. If one is to believe that DHS is targeting these countries for their inability to provide certain safeguards when issuing passports or for failing to share information on certain individuals, presumably that would apply to tourists or other short-term travelers as well. Why ban only the grandfather seeking to move to be with his US-based family?
Congress can and should do something, of course. The NO BAN Act — or the National Origin-Based Antidiscrimination for Nonimmigrants Act — was filed last year by US Representative Judy Chu of California. It’s a fair and sensible policy solution that inserts fundamental checks and balances into the president’s executive power to indefinitely restrict or bar foreigners from coming to the United States. The bill would amend the section of the Immigrant and Nationality Act that grants the president such broad discretion and, aside from repealing all Trump’s travel ban orders, it would require that all future presidential travel limits be reported to Congress and the public, and that they be supported by credible evidence.
When Donald Trump signed the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States in 2017, banning foreign travel into the U.S. from various nations, it included a provision saying waivers would be granted on a case-by-case basis. Either a consular officer or or a Customs and Border Protection (CBP) official could, it said, make this discretionary decision. But how does one actually qualify or apply for it?
Who Qualifies for a Waiver of Travel Ban
To be eligible for a waiver, the applicants must demonstrate all of the following:
Undue hardship to the applicant would be caused if U.S. entry is denied. In other words, some unusual situation other than difficulty in the home country compels immediate travel and delaying issuance of the visa would defeat the purpose of the applicant’s trip. Note that “undue hardship” is less than the “extreme and unusual hardship” required for some immigration waivers.
The applicant’s entry to the U.S. would be in the U.S. national interest. This means that some U.S.-based person or entity would suffer hardship if the applicant could not travel until the travel ban is lifted.
The applicant’s entry to the U.S. would not pose a threat to U.S. national security or public safety. The DOS will check the applicant’s name against FBI and related databases, as well as check sources within countries where the applicant has lived.
With regard to the undue hardship criterion, a DOS letter of February 22, 2018 summarized that the applicant must “demonstrate to the satisfaction of the consular officer that an unusual situation exists that compels immediate travel,” such that delaying issuance of the visa would defeat the very purpose of that travel.
The same letter explained that for the requirement regarding the U.S. national interest, the applicant will need to show that “a U.S. person or entity would suffer hardship if the applicant could not travel” to the U.S until the travel ban is lifted.
The public safety portion of the waiver requirement will depend more on what the U.S. government turns up in various crime databases.
The Executive Order also offered examples of who might qualify for a waiver, such as people with:
previous U.S. admissions for continuous work or study
significant ties to the U.S.
significant business or professional obligations in the U.S.
close U.S. family members (spouse, children under age 21, or parents) would suffer undue hardship if the applicant was denied entry
emergency circumstances such as medical needs
jobs with the U.S. government or an international organization
landed Canadian immigrant status, applying for the visa from Canada, and
government sponsorship for an exchange program.
Practitioners report, however, that very few people actually get “cleared” for these waivers by the Department of State (DOS), and even fewer receive an actual grant thereafter.
What Is the Application Process for a Travel Ban Waiver?
No waiver form has been created to apply for this travel-ban waiver. The only good news about that is that no fee has been set to review one’s waiver request (as would be all but guaranteed if there were a form for it).
Basically, you will be expected to apply for the visa as normal, pay all the application fees, and apply for the waiver at your visa interview at a U.S. consulate in your home country.
(Attorneys have tried submitting waiver requests earlier in the process, such as when submitting the initial petition to U.S. Citizenship and Immigration Services (USCIS) or interacting with the National Visa Center, which is an intermediary between USCIS and the overseas consulate, but have had limited success with this.)
The consular officer who conducts the visa interview is not even obligated to accept written materials requesting the waiver. Applicants are allowed to simply “disclose” during their visa interview the reasons they believe they are waiver-eligible. No matter what, be ready to sum up your reason for requesting the waiver when talking to the officer.
Preparing Written Evidence to Support Your Waiver Request
If at all possible, however, prepare written materials explaining the reasons you merit a waiver and accompany that with supporting evidence.
Start by filling DOS Form DS-5535. Although it’s not necessarily required, it asks various relevant questions, so immigration attorneys have begun to regularly use it in this context.
Also prepare sworn declarations from you and any U.S.-based family members explaining eligibility for the waiver, including your immediate need for the visa and the hardship that would be caused if you were denied.
If the urgent need is based on a U.S. employment or academic relationship, also have the employer or school write a letter of explanation. An employer, for example, might mention the cost of recruiting someone new to replace you, or the lost business that would result (accompanied by, for example, copies of important business contracts for projects you are involved in).
Look for supporting materials from authoritative, unbiased sources. For example, if you are claiming a waiver based on emergency medical needs, you would want to include a statement from your doctor.
If claiming a waiver based on hardship to family in the U.S., you would need to provide copies of birth and marriage certificates proving the family relationship (if they’re not already in the immigration file under which you’re applying) and evidence of the nature of that hardship.
If difficult conditions in the home country are a factor, cite sources such as the DOS’s travel warnings. Tough country conditions won’t be enough for a waiver grant by themselves, but can be woven into a more specific, personal account of potential hardship.
If you have already made travel arrangements, include copies of the tickets and itineraries in your waiver request packet.
Copies of visas you have received from other countries as well as local police certificates can also be useful, as proof that you have been vetted and cleared by other countries, and present no security risk.
It started out as a joyous day for Olumide. On 31 January, the 32-year-old Nigerian American learned in an email that the US was finally processing the visa applications of his wife and daughter in Nigeria.
Hours later, Donald Trump shattered their celebration, announcing that he was adding six countries to the travel ban, including Nigeria. The decision cuts off pathways to permanent US residency for Nigerians, throwing Olumide’s case into limbo at the final stage of the process. It leaves his wife and and 11-year-old girl stuck across an ocean with little hope of making it to the US.
“This is inhuman,” said Olumide, a systems analyst and US military veteran who served in Afghanistan and lives in Washington DC. He asked to use his middle name out of fear he might jeopardize his case. “As a soldier, I understand the need to protect the country. But to completely shut the doors … it’s just plain wrong.”
Millions of Africans now banned: ‘We are not criminals’
Trump’s January order builds on the 2017 travel ban that has continued to target five Muslim-majority countries, and significantly restricts permanent residency for nationals from Eritrea, Kyrgyzstan, Nigeria and Myanmar. It also blocks people from Tanzania and Sudan from obtaining green cards through the “diversity visa” lottery.
Just like the 2017 restrictions, it blocks permanent immigration from the targeted countries, making limited exceptions if applicants prove that denials would cause “undue hardship” and that granting them visas would support “national interest”.
The original ban already resulted in denied visas for more than 42,000 people, the majority from Iran. The addition of the new countries has doubled the number of Muslims targeted across the globe to roughly 320 million, advocates estimate. Roughly one-quarter of all Africans are now affected.
The restrictions now apply to 13 countries, including Nigeria, home to Africa’s largest population and economy. It cuts off countries where some are fleeing violence. Some estimate the new ban, which goes into effect on 21 February, could hinder more than 12,000 immigrants seeking to resettle in the US and reunite with family in the next year.
“Trump started out by scapegoating Muslims in 2017,” said Javeria Jamil, attorney with Asian Americans Advancing Justice’s Asian Law Caucus, who has been fielding calls from families affected by the new ban. “Now, it’s not just the Muslim ban. It has turned into an African ban.”
The Trump administration has claimed that the ban, which blindsided some diplomats, is a national security measure, and that the added countries failed to meet US security and information-sharing standards.
But immigrant rights groups said the policy is a political maneuver amid Trump’s re-election campaign – and one that will have profound consequences.
“People are in turmoil,” said Audu Kadiri, a 43-year-old community organizer who left Nigeria in 2014. He had planned to bring his mother to the US, but the ban may make that impossible. The activist, who now lives in the Bronx, hasn’t yet told his mother about Trump’s order, because he doesn’t know how to break the news. “There is so much collateral damage, it’s hard to quantify.”
In Nigeria, Kadiri was an LGBTQ+ rights advocate who worked on HIV prevention and other human rights issues. He was forced to flee due to his activism and sought asylum in the US. It’s now unsafe for him to return to Nigeria, which is why he wants his 68-year-old mother to come to the US.
He hasn’t seen her since 2014 and, if Trump is re-elected, he fears it will be at least another five years before they reunite. She’ll probably miss the birth of his third child.
“Nigerians have contributed to the development of this country, like every immigrant community,” he said. “We are not criminals.”
Torn apart, with dwindling options
Before the January announcement, the Trump administration had already clamped down on travel from Africa, including hikes in visa fees, and new obstacles and increased denials for Nigerians seeking approval for short-term visits. The US further suspended visitor visas from Eritrea in 2017.
That means families have been fighting for years to use the dwindling avenues available to them to reunite, and for those who have invested significant time and money into the process, the sudden news of an outright ban was particularly brutal.
“There’s nothing you can do, and it makes you feel so helpless,” said Olumide, the veteran. Olumide arrived in the US from Nigeria when he was 10 years old. He met his wife in Nigeria in 2012 after he left the military, and the two got married last year.
US Citizenship and Immigration Services approved the petition for his wife and daughter in January, just before the announcement of the ban. But they don’t yet have their visas – and the ban may make it impossible to get them.
Olumide had hoped they would be starting their lives together in the US by now, and said he was pained by feelings of guilt: “I made promises to her.” The couple hasn’t fully processed the news, he added: “We don’t want to think about not being together.”
He noted that his daughter has typhoid and his wife has malaria, and he constantly fears for their health and safety.
Hana Mohamed, a 20-year-old student in San Diego, who grew up in Sudan, said she was eager for her grandparents to come to the US, especially so her grandmother could get medical care in California: “It’s just so sad and frustrating. They are getting older, and I want to see them before anything happens.”
Mohamed said it was difficult to accept that the US was banning large groups of Muslims in the name of safety while seeming to do little about the ongoing terror threat of American mass shootings: “It’s just so shocking that we have come to this day where a whole nation of people are getting discriminated against. Isn’t the purpose of the United States to stand up for everyone who is getting hurt and treat them right?”
Isn’t the purpose of the United States to stand up for everyone who is getting hurt and treat them right? Hana Mohamed
One Eritrean American who works as an engineer in Silicon Valley, and requested anonymity for fear of hurting his family’s case, has petitioned for his mother to come live with him in the US and was hoping she would soon get an interview date at the embassy. Then the new ban was unveiled.
“We’ve waited our turn. We’ve followed the law. I’m a tax-paying citizen contributing to the economy,” he said, noting that his mother is 69 years old and lives alone in Eritrea. “This is just pure evil.”
He said he felt Trump was implementing the ban as a “soundbite for the campaign” while disregarding that it would leave Eritreans like his mother with no options: “This was our only hope to get her here.”
For Eritreans, the ban comes as as the Trump administration has ramped up deportations of Eritrean asylum seekers, despite the US government’s own acknowledgment of the torture and arbitrary detention Eritreans are currently facing.
Abraham Zere, an Eritrean journalist who was granted asylum in the US and now lives in Ohio, said it seemed some Eritreans were reluctant to speak out about the ban and live in fear of potential repercussions from both governments: “People are scared to even discuss it.”
Zere’s own family is affected: his mother is still in Eritrea, separated from her children. She can’t even video chat with her family because of the poor internet in Eritrea, which means she never gets to see her granddaughter, an eight-year-old she hasn’t yet met, he said.
Some warn the ban may have life-or-death consequences. For queer and transgender migrants in the targeted countries, it could lead them to embark on perilous journeys to escape to the US as they run out of options, said Zack Mohamed, who is Somali American and a member of the Black LGBTQIA+ Migrant Project: “This is a big ‘not welcome’ sign in front of our faces.”
In response to questions about the impact on migrants fleeing violence, a US state department spokesperson said the ban was not meant to “limit the ability of an individual to seek asylum”, adding: “Our first priority remains national security. We continue to work with our dedicated consular officers in the field to identify and expedite those individuals with urgent travel needs.”
Asked about charges that the ban is discriminatory, the spokesperson said the restrictions are based on “nationality” and “visa category” and that “consular officers do not adjudicate based on religion”. The spokesperson said there were specific criteria to determine which countries are restricted and noted that Chad was on the original list but removed in 2018.
Fighting to end the ban
With the first travel ban upheld by the US supreme court, there are few recourses left to challenge the policy. Advocates are hoping a Democratic president will immediately repeal the ban and have also recently renewed the push for Congress to pass the No Ban Act, which would end the ban and prevent discriminatory immigration policies.
Until then, Trump will continue to use his executive power to try to redefine what it means to be a citizen, advocates warned.
“The president of the United States, the US government is explicitly trying to decide who gets to be an American,” said Eric Naing, who is Burmese American and works with Muslim Advocates, a group that has challenged the ban. His family would not have been able to come to the US if the ban on Myanmar had been in place. “He’s saying I shouldn’t be American. My parents shouldn’t be American. It’s deeply upsetting.”
Olumide noted that the ban was punishing countless American citizens like him: “It’s hurting the exact people you’re trying to protect.”
A new study released by Georgetown University in part refutes the notion that African American and Latinx minorities can improve their socioeconomic standing just by going to college.
According to the study, between 1991 and 2016, black and Latino Americans increased their likelihood of obtaining and maintaining a good job, but their white peers still disproportionately hold better jobs compared to their overall employment.
“It’s a pretty damning story all together, and it says that there’s a huge challenge ahead of us,” said Anthony Carnevale, a research professor at Georgetown and director of the university’s Center on Education and the Workforce, who is also a co-author of the study.
A good job as defined by the study is one that provides “family-sustaining earnings,” which translates to minimums of $35,000 annually for workers 25 to 44 and $45,000 for workers 45 to 64.
Regardless of education levels obtained, these racial disparities continue to exist. Diversity in higher education has made improvements over the years but is still not accessible to all, primarily due to cost. The National Center for Education Statistics found that in 2017, 41 percent of white young adults were enrolled in college, compared to 36 percent of black and Hispanic young adults. Additionally, for Americans over 25, 33 percent of whites have a bachelor’s degree, compared to 19 percent of blacks and 16 percent of Hispanics.
The study found that in 2016 the median wage of a good job for workers with a bachelor’s degree for whites was $75,000 compared to $65,000 for blacks and Latinos.
White workers are also paid more than black or Latinx workers in good jobs at every level of education received. College-educated whites have benefited the most from the increased demand for college-educated workers, said the study.
The study also found that in 2016 white workers held 77 percent of the good jobs despite only representing 69 percent of available job holders. Black workers had 10 percent of the good jobs out of 13 percent of the jobs they held, and Latinx workers had 13 percent of good jobs while holding 18 percent of all jobs. Also in the study findings was that black Americans have almost twice the unemployment rate of white Americans, and Latinos have about 1.5 times the unemployment rate of whites.
“We are a culture that keeps secrets from ourselves,” said Carnevale regarding the bias that exists in hiring processes.
Additional explanations for the lack of minorities in good jobs despite education levels, beyond personal bias, includes feeder patterns through school systems and the ability to form connections with people already in good jobs. However, according to Carnevale, at the margins, bias and discrimination better describe the divide in who holds good jobs.
As workers increase their level of education, wage discrimination is reduced between whites and minorities, but it still remains.
“Our institutions are now working in such a way that it pretty much guarantees that the white kids win. And we know that this is deeply embedded in the system,” Carnevale said.
Carnevale cited a previous study he worked on which found that 70 percent of white students from the top income sector still ended up going to college and getting a good job, while only 30 percent of lower-income students with high test scores followed that path. When those lower-income and minority students did make it into good jobs, they ended up getting paid less than their white counterparts.
He said that the conclusions to the study were stronger than he thought they would be, noting that there was progress for African Americans despite their position in comparison to whites.
“We had slavery, Jim Crow, the failure to hand out 40 acres and a mule; we had housing policy, veterans’ policy, redlining. The new culprit is higher education,” said Carnevale. “It’s institutional just like the [Federal Housing Administration] policies that didn’t allow black people to buy houses in the suburbs. Colleges in America didn’t set out to do this, but in a passive sense they’ve become the capstone in a system that guarantees racial inequality.”
“In the end higher education is part of the problem, not part of the solution. The industrial organization of higher education is part of the problem,” said Carnevale.
Carnevale said that higher education needs to fundamentally change to help solve the problem, something he says most people recognize.
While African American and particularly Latino workers have gained traction in fields where a high school or middle-skills education is needed, whites still dominate jobs which need a bachelor’s level of education. Middle skills refer to jobs that require less than a B.A. but more than a high school degree.
Carnevale compared the situation to a race where minorities are “running faster but losing ground” to white Americans, particularly affluent ones, who are pulling ahead.
“I don’t think people — I didn’t, anyway — fully understood the extent to which, since the ’80s, the white and affluent population has basically locked down the future,” said Carnevale. “You can get rid of discrimination, but this is a structural problem.”
Carnevale said that whites are poised to continue to hold good jobs, especially in the B.A. sector, and minorities will have a hard time catching up.
The study recommended expanding educational opportunities and addressing discrimination, as well as implementing policies and incentives that encourage diversity and create more growth in underdeveloped areas.
One of the solutions Carnevale suggested was introducing work experience and training to students earlier. This included in middle and high school, because as it stands now, young people are not getting the relevant work experiences they need.
Carnevale said that some good news is that the number of good jobs is increasing while black and Latinx unemployment rates have decreased. However, those improvements do not mean that black or Latinx Americans have caught up to the good job opportunities accessible to white Americans.
“The pessimistic conclusion I come to — and not all my co-authors agree with me — is that the white population in America has set itself up for the next 30 to 40 years,” said Carnevale. “I don’t see what will change that except for policy on a scale that’s actually effective.”
Immigration Status Discrimination occurs when an employer treats an individual differently based upon their citizenship or immigration status. U.S citizens, recent permanent residents, aslyees, and refugees are protected from immigration status discrimination. The only exception applies to permanent residents who do not apply for naturalization within six months of eligibility; these individuals are not protected from immigration status discrimination. This type of discrimination deals largely with abusive requests for paperwork related to ones immigration status. Immigration status discrimination is also sometimes referred to as citizenship status discrimination and is closely linked to National Origin Discrimination. This page will provide more detail about immigration status discrimination. Also find more related information on our national origin discrimination page.
1. What is discrimination based on immigration or citizenship status?
Discrimination based on immigration or citizenship status occurs when an individual is treated differently in their employment because of their citizenship or immigration status. It is different from national origin discrimination because the characteristic the discrimination is based on is the individual’s immigration status, rather than whether an individual or his or her ancestors came from another country. Both types of discrimination are against the law.
The only exception to this rule applies to permanent residents who do not apply for naturalization within six months of eligibility. These individuals are not protected from citizenship status discrimination. Similarly, some actions by employers that might otherwise be considered illegal discrimination, may be permissible if they are required by another law, executive order, regulation, or government contract. For example, a government contractor may request additional paperwork for a security clearance, if the government contract requires it.
If you have been rejected for employment, fired, or otherwise harmed in your employment because of your citizenship, immigration status or type of work authorization, you may have suffered illegal immigration status or citizenship status discrimination.
The Immigration Reform and Control Act (IRCA) is a federal law that protects individuals from employment discrimination based on immigration or citizenship status. This anti-discrimination law makes it illegal to discriminate on the basis of national origin or citizenship status in hiring, firing (including layoffs), recruitment, or referral for a fee. It makes it illegal to require more or different documents than are legally acceptable for employment verification purpose. It also makes it illegal to refuse to honor the documents the employee offers if they are legally acceptable and appear to be genuine. Finally, it prohibits intimidation, coercion, threats, or retaliation against individuals who file charges or otherwise cooperate with an investigation, proceeding, or IRCA hearing.
Some examples of potentially unlawful immigration or citizenship status discrimination include:
You didn’t get hired because the employer hires only U.S. citizens to do certain jobs.
You are a temporary resident with work authorization, but a company denies you employment because it doesn’t want to deal with the “hassle” of filling out the appropriate paperwork.
Muslim, Asian and Latino employees are asked for copies of their work authorization papers, while other employees who are Caucasian or African-American are not asked to provide similar authorization papers.
You show your employer your driver’s license and social security card, but your supervisor insists that you also show her a copy of your green card. When you point out that this is not required by law to fill out the I-9 form, you are told the company requires it.
You sign up with a temporary agency, and learn that a certain employer has work for someone with your skills and experience. The agency refuses to refer you to work for this employer because the employer wants to hire only U.S. citizens.
Discrimination, harassment, or retaliation against an undocumented worker on the basis of other protected statuses, such as race, sex or religion also violates the law.
If any of these things have happened to you on the job, you may have suffered immigration or citizenship status discrimination.back to top
2. Which federal laws cover discrimination based on immigration or citizenship status?
The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), is a federal law covering almost all immigration matters. It protects individuals from employment discrimination based on immigration or citizenship status, and prohibits document abuse discrimination, which occurs when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others.
While workers are also covered by several other workplace laws, these are the main federal laws which protect workers against discrimination based on immigration or citizenship status.back to top
3. Who is protected under the law?
IRCA’s anti-discrimination provision prohibits discrimination against “protected individuals,” who include citizens or nationals of the United States, permanent residents, lawful temporary residents, refugees, and asylees.
U.S. citizens, U.S. nationals, and authorized aliens are protected from discrimination on the basis of national origin if the employer employs more than 4 employees. While Title VII covers only workplaces with 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces where the employer employs between 4 and 14 employees.
If two non-citizens have different immigration status, an employer may not favor one status (such as permanent resident) over another (temporary resident with work authorization) or require certain kinds of documents from one employee and not from the other.
The law’s protections apply to job applicants as well as current employees. If you are a current employee and are fired or not promoted due to your immigration or citizenship status, you are protected by the law. If you are not hired due to your immigration or citizenship status and/or the valid work authorization documents you present, you are also protected by the law.back to top
4. Which employers are covered by the law?
All employers with 4 or more employees are covered by the laws against discrimination based on immigration, citizenship status, and document abuse. While Title VII covers only those workplaces 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces with between 4 and 14 employees. The only difference between the two anti-discrimination laws concerns which governmental agency enforces the laws against your employer.back to top
5. Can I be asked if I am a citizen?
An employer should not ask about your citizenship status during a job interview. The employer can only notify you as a job applicant that, should a job be offered to you, you will be expected to provide evidence that you are legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate, as saying this selectively may be illegal discrimination.back to top
6. I am a non-citizen with valid work papers. Can I be denied employment because my employer prefers to hire “Americans?”
Generally not. A “U.S. citizens-only” policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.back to top
7. My employer’s clients and customers do not like people who “look foreign.” Can I be reassigned or denied a job based on their preferences?
No. Client or customer preferences do not allow your employer to engage in illegal discrimination.back to top
8. Can an employer request work authorizations only from those who “sound foreign?”
No. To avoid claims of unlawful citizenship discrimination or document abuse, employers are required to treat everyone the same — regardless of appearance, accent, name, or citizenship status — when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.back to top
9. What documents can my employer request me to produce in order to begin working? I showed my employer my driver’s license and social security card, but he insists on seeing my green card. Is this legal?
Under IRCA, employers are required to ask for documents establishing identity and authorization to work in the United States. There are several combinations of legally acceptable documents from which they can choose. These combinations are listed on the back of the I-9 form, which must be completed for every employee, regardless of national origin, including U.S. citizens. As long as the documents presented prove identity and work authorization, and are included in the list on the back of the I-9 form, they are acceptable. Employers cannot prefer one document over others for purposes of completing the I-9 form.
Not all authorized aliens carry the same documents. Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. For example, not all aliens who are authorized to work are issued green cards. As long as the documents are allowed by law, appear to be genuine, and relate to the person, they should be accepted. To not accept such documents is illegal.
These protections prohibit discrimination against U.S citizens as well as all individuals authorized to work in the United States.back to top
10. I am an employer and have noticed that an individual I intend to hire has submitted documentation that is about to expire, is it illegal for me to hire them?
No, in fact it is illegal to discriminate against an individual upon these grounds. As an employer you are required to accept any document an employee presents from the lists of acceptable documents, as long as the document reasonably appears to be genuine and to relate to the employee. Furthermore as an employer, you may not
demand that an employee show specific documents
Ask to see employment authorization documents before an individual accepts a job offer
Refuse to accept a document, or refuse to hire an individual because a document will expire in the future
Refuse to accept a receipt that is acceptable for Form I-9 purposes
Demand a specific document when re-verifying that an employee is authorized to work
However, it is important to note that employers are required to reject paperwork that does not reasonably appear to be genuine or that does not relate to the individual presenting them.back to top
11. I do not have authorization to work in the U.S. and my employer knows this. Can I be hired anyway?
IRCA was the first federal law making it illegal for employers to knowingly hire persons who are not authorized to work in the United States. IRCA also made it illegal to continue to employ an undocumented worker or one who loses authorization to work. (Those hired before November 6, 1986, do not fall within this category.) IRCA prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees’ identity and work eligibility as specified on the I-9 Form.
An employer who knowingly hires an undocumented worker and/or fails to verify an employees’ identity and work eligibility may be liable for criminal sanctions.back to top
12. I do not have authorization to work in the U.S., but I have been working anyway. What do I do if I have been harassed or discriminated against at work?
According to the Equal Employment Opportunity Commission (EEOC), the governmental agency that handles discrimination cases, undocumented workers are, with a few exceptions, entitled to the same protections and relief as documented workers under federal anti-discrimination statutes.
If you are an undocumented worker who has been harassed or discriminated against, you should follow the same steps as other workers to file a discrimination complaint. EEOC will not, on its own initiative, inquire into a worker’s immigration status, nor consider an individual’s immigration status when determining whether a discrimination charge has merit.back to top
13. Can my employer have me deported for reporting harassment or discrimination?
It is against the law for your employer to report or threaten to report a worker to the Immigration and Nationality Service (INS) because the worker opposed unlawful discrimination or participated in a proceeding under the anti-discrimination laws. If your employer appears to have acquired information about your unauthorized status after you complained of discrimination, the government agency investigating your complaint will also attempt to determine whether your employer’s purpose in finding out information about your immigration status was to retaliate against you.
Any person facing deportation, whether as a result of incidents occurring at work or not, should consult immediately with a lawyer who specializes in immigration law, as this is a serious and complex legal issue beyond the scope of the information provided by this website.back to top
14. Who enforces the law?
The Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) is responsible for investigating charges of job discrimination related to an individual’s citizenship, immigration status and, in certain situations, national origin. The OSC also investigates charges that an employer has requested that an employee or job applicant establish employment eligibility and identity by presenting more or different documents than are required by law, rejected reasonably genuine-looking documents, or demanded a specific document such as a Alien Registration Card or “green card.”
The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces of 15 or more employees. The EEOC also investigates charges of job discrimination on the basis of race, color, sex, age, religion and disability, including charges filed by undocumented workers.back to top
Those who successfully prove they have been discriminated against because of their immigration or citizenship status can recover back pay, job offer, and reinstatement. OSC settlements can also require employers to stop discriminatory practices, pay monetary penalties, undergo monitoring, and receive antidiscrimination training.
If you are an undocumented worker and your employer discriminates against you in violation of any of the federal antidiscrimination statutes, you may obtain various kinds of relief as permitted by the federal statutes. For more detail, please see the page on this site that discusses the specific kind of discrimination that you suffered.
An undocumented worker may not be eligible for an award of back pay, according to a recent U.S. Supreme Court decision . An undocumented worker hired on or before IRCA was passed on November 6, 1986 is eligible for reinstatement. If you were hired after that date and your employer knows that you are undocumented, you must supply proper documentation verifying employment eligibility to be reinstated.
Undocumented workers are also nominally protected by the National Labor Relations Act from retaliation (including termination) for their union activities (such as organizing) even though they are undocumented. We say “nominally” because the Supreme Court has recently decided that while it is illegal for an employer to discharge an undocumented worker for union activities, the worker is not entitled to backpay for such retaliation. back to top
17. How long do I have to file?
For workplaces with between 4 and 14 employees, you must file a charge with OSC within 180 days from the date you believed that you were discriminated against in order to protect your legal rights. To protect your rights, it is always best to contact OSC or an attorney promptly when you suspect discrimination has occurred.
For workplaces with 15 or more employees, please note that all laws enforced by Equal Employment Opportunity Commission (EEOC) require filing a charge with the EEOC (or a cooperating state agency) before a private lawsuit may be filed in court. Many states also require that you file with a state administrative agency or with the EEOC to enforce state laws. There are strict time limits within which charges must be filed. See filing a discrimination complaint for more information.back to top
18. More information about immigration status discrimination: