Discriminating against Non-Citizens

A review of state and federal laws finds it is illegal for employers to discriminate based on a worker’s citizenship — and there is probably no difference whether the worker is legally or illegally in the United States.

Question: Is there any reason why a state antidiscrimination law would not apply to a non-U.S. citizen?

As a general proposition, both state and federal laws apply to non-U.S. citizens when they are in the United States. See Estate of Casimir v. New Jersey, No. 09-4004, 2009 U.S. Dist LEXIS 78113, *19 (D.N.J. Aug. 31, 2009) (finding that a person within the United States cannot “exempt” or “immunize” himself from the “application of state or federal law by declaring himself a non-citizen … .”).

The equal-protection clause of the U.S. Constitution, which prohibits states from denying any person within its jurisdiction equal protection of the law, has been found to apply to non-U.S. citizens, or aliens, as well as citizens. Francis v. Immigration & Naturalization Serv., 532 F.2d 268, 272 (2nd Cir. 1976) (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Moreover, some states and local municipalities have explicitly found it illegal to discriminate on the state or local level based on citizenship. See e.g., Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1009 (9th Cir. 2007) (stating that under California Civil Code, “[a]ll protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” (citation omitted)). See also NYC Admin. Code 8-107 (prohibiting an employer from discrimination based on an individual’s citizenship status).

The equal-protection clause and the federal government’s own antidiscrimination provisions prevent a state or employer from denying protections to a non-U.S. Citizen. Title VII of the Civil Rights Act of 1964 prohibits employers from discrimination based on, among other characteristics, national origin. 42 U.S.C.§2000e-2.

The Supreme Court has confirmed that Title VII applies to both American citizens and aliens working in the United States. EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) (finding that Title VII does not apply to the employment of aliens outside of the United States).

See also EEOC v. Hacienda Hotel, 881 F.2d 1504, 1517 n.10 (9th Cir. 1989) (assuming without deciding that undocumented workers are entitled to the protections of Title VII); EEOC v. Tortilleria “La Mejor”, 758 F. Supp. 585, 590 (E.D. Cal. 1991) (holding that “the protections of Title VII were intended by Congress to run to aliens, whether documented or not, who are employed within the United States”).

It is important to note though that, while non-U.S. citizens will often have a different national origin and thus be protected under Title VII, Title VII’s prohibition against discrimination is not based on the fact that a person is not a U.S. citizen. SeeAyiloge v. City of New York, No. 00 Civ. 5051 (THK), 2002 U.S. Dist. LEXIS 11807, at *16 (S.D.N.Y. June 28, 2002)(explaining that “[a]lienage discrimination must be distinguished from national origin discrimination, which is based solely on an individual’s birthplace or nation of origin… .”) (citation omitted).

The distinction is addressed in the Immigration Reform and Control Act of 1986, which prohibits employers from discriminating on the basis of citizenship status, with certain exceptions to the prohibition related to illegal aliens. 8 U.S.C. § 1324B (2011). See Lozano v. City of Hazleton, 620 F.3d 170, 199-200 (3d Cir. 2010).

Additionally, most states have their own antidiscrimination statutes and none of those laws explicitly exclude non-citizens from coverage. Mississippi, Alabama and Georgia are the only three states that do not have antidiscrimination statutes at a state level, though Georgia does have an act that applies to public employers. 6 Arthur Larson, Employment Discrimination §§114.01-.02 (2d ed. 2006).

Recently, there has been a rash of state-level legislation directed at immigration. In 2010 alone, 46 state legislatures and the District of Columbia enacted 208 laws and adopted 138 resolutions. See The National Conference of State Legislatures, State Laws Related to Immigration & Immigrants, (last visited May 10, 2011).

The legislation ranged from denying unemployment benefits to temporary, legal immigrant farm workers, SB 3494, 96th Gen. Assemb. Leg. (Ill. 2010), to adding both legal and illegal aliens to the definition of “employee” for the purpose of workers’ compensation benefits, HB 761, Gen. Assemb. Ch. 278, 2010 Session (Va. 2010).

However, none of those laws modified or denied the application of a state’s antidiscrimination laws.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department’s Employment Litigation and Arbitration Practice Group.