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It is illegal in New York City to discriminate on the basis of national origin or citizenship status, and, while employers are required to verify that employees are authorized to work in the U.S., it is also illegal to so overdo the verification process that it effectively discriminates against the applicant.
The issue of non-citizen employment is clearly a minefield for employers, which is why the City Commission on Human Rights recently held a forum for employers entitled "Preventing Immigration-Related Employment Discrimination."
Many industries in New York employ more non-citizen immigrants than American citizens. This is certainly true of hotels. But other affected employers include those in the car rental business, home cleaning services, city agencies, YMCA, tour bus companies, housing complexes, banks, credit unions, nursing homes, hospitals, and a television station. All of these showed up for the forum.
"We're trying to make them aware of the law," said Betsy Herzog of the commission. "Even with immigrant employers, they don't always know the law. The paperwork is complicated."
Since 1986, all employees have been required to fill out I-9 forms for Employment Eligibility Verification. It lists 10 documents, such as a U.S. passport or Unexpired Employment Authorization Card that on their own establish identity and employment eligibility. Problems arise when an employer insists on one form of verification to the exclusion of others or insists on multiple documents when one alone will do.
Rachel Pomerantz, a law enforcement attorney with the commission, said, "The more you know as an employer, the less likely you are to have someone sue you for employment discrimination." She noted that the city human rights law covers more than the federal law does.
Pomerantz told the employers that it is never a good experience to have a complaint filed against you, even if there is no finding of discrimination, and said that the commission will "try to intervene before the complaint is filed," because sometimes "it is a matter of hurt feelings and can be resolved with a call." She noted that the city's human rights law and rules of practice for administrative hearings can be read online. She warned employers who have a complaint filed against them not to compound the problem by retaliating against the aggrieved employee. "We're here as a resource," she said, and urged them to call the Law Enforcement Bureau at 212-306-7450 when a question arises.
Common complaints from immigrants include discrimination based on their accents, unless it would interfere with their ability to do a particular job. "Exceptions are narrow," she said. ""You can't refuse to hire someone because you don't think that your customers will like the accent." It is also illegal to enforce English-only rules in a workplace during breaks and lunch. "There has to be a job-related necessity," she said.
Similarly, dress codes cannot discriminate against a "foreign look," such as wearing a sari, unless there are safety concerns. "You can have a uniform, but everyone has to wear it," she said.
Anthony Archeval, senior trial attorney with the Civil Rights Division of the U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices, offers a video for employers, "Going Too Far," and promises to educate employee and employer groups who contact them at 1-800-255-7688 (or 1-800-237-2375 for the hearing impaired). In his experience, discrimination is not a result of evil intent, "but of a misunderstanding of the law."
The Department of Justice also has a Telephone Intervention System "for willing employers and workers, to avoid misunderstanding," and publishes a guide called "Look at the Facts, Not at the Faces: Your Guide to Fair Employment."
To have the Commission on Human Rights schedule a workshop on immigration issues for your group or workplace, call 311. The workshops are available in a wide variety of languages and have already been conducted in Spanish, Creole, Russian, Mandarin, African dialects, and, of course, English.Andy Humm is a former member of the City Commission on Human Rights. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (57 on Time-Warner; 109 on RCN) on Thursdays at 11 PM.
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