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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.

By Mike Silva ~ May 31st, 2011. Filed under: Mike Silva, Outside the Apple.

I am not surprised that I received some negative feedback from Giants loyalist after I said the injury to Buster Posey doesn’t deserve a rules change regarding home plate collisions. One area that has been glazed over is the fact that San Francisco has apparently instructed Posey to not block home plate since his promotion to the big leagues. Not only did this not accomplish its objective – keeping Posey healthy- but possibly led to poor fundamentals when it comes to plays at the plate.

Posey is a phenomenal talent both offensively and defensively. He can certainly hit, has a bullet for an arm (career 37% caught stealing), and I have read the pitchers like his game calling. He hasn’t, however, mastered all the fundamentals of catching. Kevin Kennedy and Jim Duquette were speaking about this as well on MLB Home Plate

The Giants anemic offense is largely reliant on Posey. A great comparison is how the late nineties/turn of the century Mets were with Mike Piazza. They had Alfonzo, Ventura, Olerud, and Zeile during their playoff runs, but the core of their offense was Piazza. Fortunately, he never went down or was lost for a significant amount of time when it mattered. When Piazza was injured, it was during the 2003 season and was due to a torn muscle. By that time the Mets were a last place team going nowhere. Ironically, they did find a way to win without him in the playoffs, as he missed a majority of the ’99 NLDS against Arizona due to injury. This was the same series that was won when his backup, Todd Pratt, homered off Matt Mantei to clinch it in Game 4.

I never saw the Mets invoke special rules for Piazza. Although not known for his defense, blocking the plate was one of his strengths. If the Giants are that concerned about their star hitter, then they should pave the way for him at first base. Instructing him to not block home plate is the equivalent of never driving that new car because you are afraid of denting it in an accident. Usually what happens is a tree falls on it in your driveway. That tree found Buster Posey.

The real debate shouldn’t be about collisions at home plate, but rather what the heck were the Giants doing not teaching their star catcher all the fundamentals necessary to excel with the tools of ignorance. Why should the league make special exceptions for one player when other offensive catchers, far greater than Posey, never needed the same courtesy.

There is a Republican-sponsored bill in the legislature (HB 709 and SB 544) that will reduce compensation benefits to injured workers, abolish their rights to physician-patient privacy and make it easier for insurance companies to cut off benefits.

In order to understand the significance of these changes, it is helpful to understand some history and how the Workers’ Compensation Act works.

As an adjunct professor at North Carolina Central University School of Law, I teach workers’ compensation law, and on the first day of class we always discuss the March 26, 1911 Triangle Shirtwaist Company fire in New York City in which 146 young women, many of whom spoke Yiddish, not English, as their primary language, died because the fire doors were locked. Many of them jumped to their deaths from the 11th floor as horrified spectators watched from below. No compensation was paid for their deaths.

After this event, New York passed one of the first workers’ compensation acts in the United States. Many states followed and North Carolina eventually passed a law in 1929.

The theory behind it remains the same: In exchange for quick but limited benefits to the injured worker, the employer got immunity from civil liability for the full extent of the injury. In determining limited benefits, the law provides that the injured individual gets two-thirds of the weekly wage earned prior to the injury as long as disability continues; all reasonable medical bills related to the injury are paid; and if a body part has been permanently injured then additional payments can be made.

The wear and tear of the human body is like the wear and tear of a machine. Each body part is assigned a certain number of weeks of compensation if permanently damaged.

Under this system what would be the payment if your left ring finger were amputated in a machine? You would get 25 weeks of benefits ($9,615.75 for a 20-year-old who earns $30,000 per year). That is not much for having a physical deformity for the next 60 years or so, and not being able to wear a wedding ring on that finger.

Total loss of the hand is 200 weeks. Total loss of the foot is 144 weeks, etc.

This system applies equally to young and old alike. Also, there is no compensation for physical pain or emotional suffering. One lady had her hair caught in a machine and a portion of her scalp was ripped from her head. She got disability benefits but nothing for pain.

If you are totally disabled from work, the weekly benefits are fixed on the date of injury and never increase. Twenty years after the injury, you will still be getting the exact same weekly benefit. To appreciate the economic impact of that fixed amount, think about the price of gasoline or the price of a movie ticket 20 years ago.

What about immunity for the employer? How does that work? In 2010, a 17-year-old boy was working on a large machine that would shred pallets to make mulch. He became entangled in the machine, was drawn through the crushing chamber and his remains were found on the discharge side of the shredder. A safety bar had been removed and the employer was cited with 11 violations, including the failure to properly train the employee. Because of workers’ compensation immunity, the family of this young man was prohibited from bringing a civil claim against the employer. At the end of the day, the employer got immunity and the family got limited benefits of 400 weeks of compensation, plus funeral expenses of $3,500.

The bill pending in the North Carolina legislature allows disability benefits to stop after 500 weeks (approximately 9.5 years), even if the employee is still disabled. There are some exceptions (for those paralyzed, or for those who have brain injuries, etc.) but otherwise, after 500 weeks, benefits simply stop.

What happens to the individuals who are still disabled? Will they magically become employable? Not likely. Will they starve? Probably not. They will no doubt fall into a taxpayer funded safety net called Medicaid, Medicare or Social Security Disability. It is a classic case of cost-shifting from the insurance industry to the taxpayer.

Why would the legislature shift the burden for some of the most seriously injured individuals away from the insurance industry and make the public pay that debt? You might want to ask your state representative and senator that question.

Check out this worker’s argument for why he should get workers’ comp benefits, and see if you can guess whether or not they were awarded to him.

What happened

Herman Huggins, a bricklayer in New York, left his worksite during his lunch break and bought a sandwich.

He sat down in a municipal bus shelter across the street from the worksite to eat.

While eating, one of the shelter’s panes of glass fell on him, causing various injuries.

Huggins filed for workers’ compensation benefits, saying he sustained an injury arising out of and in the course of his employment.

But New York’s workers’ comp law says, “Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break.”

His argument

Huggins presented three arguments for why the injury occurred in the course of his employment:

1. His employer maintained control over him during his lunch break because if one of the foremen wanted him back on the job they could just yell across the street for him to return.
2. He said his injury occurred so close to work that it should be compensable.
3. His third argument involved a theory that vibrations from the worksite caused the shelter’s glass to collapse on him.

Where any of these arguments convincing enough to get him benefits?

The verdict

Huggins’ case went all the way to a New York state appeals court. But in the end he was denied benefits.

The court shot down each of his arguments:

• Huggins’ first argument was nixed when the court noted that he wasn’t required to carry a beeper, nor was he told where to eat his lunch.
• The court shot down Huggin’s second argument, saying a purely fortuitous coincidence of time and place is not enough to make an injury compensable.
• As for his third argument, the court called it “entirely speculative.”