You are an employer in the city and you want to follow the law. You know that it is illegal to employ anyone not authorized to work in the United States; that is why they are called "illegal aliens." So, you put a "citizens only" restriction in your help wanted ad.
If you did that, you yourself would be breaking the law.
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.
A New York City high school for gay students is making front-page news. The New York Post claimed an exclusive on its front page July 28, trumpeting, "GAY HIGH: New City School A First" about the Harvey Milk High School that the paper said is "devoted exclusively to gay kids." But the school, which is named after a member of the San Francisco board of supervisors (its city council) who was killed by a political rival, was actually founded in 1985 as a Board of Education program for clients of the Institute for the Protection of Lesbian and Gay Youth (since renamed the Hetrick-Martin Institute) It is the plan to expand the school from 50 to 170 students and its reclassification as a stand-alone high school that has attracted tabloid news interest and attacks from conservatives.
But it is also receiving scrutiny from civil libertarians, who frame the debate as a matter of civil liberties - for the non-gay students that they fear might be excluded from the school.
The debate comes at the same time that both the Pope and the president have weighed in on same-sex marriage, in an attempt to re-frame that debate from an issue of civil rights for gay people to one they might call moral rights for non-gay people: While "it's very important for our society to respect each individual," President Bush said, "on the other hand, that does not mean that somebody like me needs to compromise on issues such as marriage."
This is happening now because, thanks to recent events such as the Supreme Court ruling overturning state sodomy laws and the approval of an openly gay bishop in the Episcopal church, gay rights is looking like an increasingly accepted concept, and, thanks to changing attitudes worldwide, gay marriage is looking like an impending reality: Holland, Belgium, and parts of Canada have already opened marriage to gay couples, with Massachusetts expected to follow any day now by court decree.
With so much gay news around, it was probably hard for the Post to resist entering into the fray by claiming an exclusive. But the Hetrick-Martin Institute sent out a press release about the expansion of the Harvey Milk school way back in June 2002 after the Board of Education approved the $3.2 million necessary to renovate the space for the school and fund its operations. Since then, reporters have covered these plans on occasion, including me.
I actually worked for Hetrick-Martin myself from 1986 to 1995 as its director of education. The institute was one of the first agencies anywhere to recognize that HIV, with what we learned had an incubation period of about a decade, was a major threat to teenagers who could pick up the virus without developing symptoms until well into their 20s. Much of my job was to go out into mainstream schools educating young people and youth service providers about AIDS, but I also sometimes educated students from Harvey Milk.
The Harvey Milk High School program started under a Board of Education policy of making an onsite teacher available to any social service agency that had 20 or more young people who were not attending school. So, the board didn't vote to create a "gay school," it just did not discriminate against an agency whose clients were mostly lesbian, gay, bisexual, and transgendered - many of whom had been harassed and hounded into dropping out of school.
As much as the place made news from the beginning, with news camera crews chasing students down the block after school, so also from the beginning, a civil rights argument was used against it. Many educators, including United Federation of Teachers President Sandy Feldman, expressed reservations about what looked like a segregated learning environment. (She has since come around to seeing the need for the school.) Norman Siegel, then director of the New York Civil Liberties Union, was ready to try to stop the program from going forward on civil liberties grounds, but was dissuaded from doing so.
"I was told that it was for kids who had dropped out and that the program would help reintegrate them into mainstream schools," Siegel says.
Almost two decades later, Siegel, who is now director of the Freedom Legal Defense and Education Project, says that almost never happened, and he believes the school should be investigated for possible violations of the law, including a 2002 state law banning discrimination on the basis of sexual orientation. "If the parent of a non-gay student is turned down for the school, I would bring a complaint," he says. (There have in fact been non-gay students in the school, including a girl whose mother was lesbian; the girl had been subject to harassment in her previous school.) Siegel has a strong record of support for lesbian and gay rights, but says that when gay students are being bullied, "don't take the victim out of the school, take the bully out.
"We seem to be throwing in the towel on integration, on the 50th anniversary of Brown v. Board of Education," Siegel says. "The United States Supreme Court said that separate is inherently unequal. Schools that are all-black, all-female, or all-gay/lesbian offend that doctrine."
He is not alone in holding these views. "The city should never suggest that the solution to problems of discrimination and persecution of students who are perceived as different is to segregate them from the rest of the population," the New York Times wrote in a recent editorial about the Harvey Milk School. "The needs of gay teenagers can best be served by making sure that they, like all New York students, are able to attend regular public high schools in safety, free from bullying." In an Op-Ed in the same newspaper, a gay student also argued for mainstreaming, citing his own experiences.
Much the same arguments were used by the National Organization for Women against a school segregated by gender. In response to the establishment of an all-girls public school in East Harlem in 1997, NOW-New York City president Anne Conners said at the time, "While it's true that girls are discriminated against in school, this is a Band-Aid approach to educational equity. What we need is systemic change and the establishment of sex equity in all schools through such practical measures as increased funding for girls' sports and improved, mandatory teacher training."
There are several levels of irony in this debate, one of which is that it allows long-time opponents of gay rights to couch their arguments as one of compassion or civil liberties. For example, State Senator Ruben Diaz has also threatened legal action against the Harvey Milk School. "Instead of separating homosexual students," he told the Post, "schools should teach tolerance." Some may suspect Diaz's devotion to tolerance, since he once tried to block the Gay Games sports festival from taking place in New York because, he said, it might cause the spread of AIDS.
More ironic still: For all those years that Harvey Milk was a one-room schoolhouse helping a handful of students to complete their high school education, the Hetrick-Martin Institute was also part of the Education Coalition on Lesbian and Gay Youth, which was lobbying the school chancellor and Board of Education to make mainstream schools safe for lesbian and gay students. While chancellors from Nathan Quinones to Harold Levy agreed to limited staff training (mostly for guidance counselors), each resisted the kind of programming instituted by school systems in Los Angeles and San Francisco where each school designates a point person on gay issues who conducts training and is available to resolve conflicts.
Chancellor Joseph Fernandez was famous for pushing through an explicit HIV/AIDS education program in 1991, complete with condom availability (a program that has not been repealed but often goes unimplemented) and for trying to discipline School District 24 in Queens for resolutely refusing even to mention gay issues despite the mandates of the board's policy on multicultural education, which then included sexual orientation as a category. (The Board of Education later rescinded this at the behest of Mayor Rudy Giuliani). The myth at the time was that Fernandez was forcing schools to use the controversial second grade teacher guide, "Children of the Rainbow," which included a section on families headed by gay or lesbian parents among other family constellations. Fernandez in fact had only insisted that each district in its own way comply with policy by dealing with gay issues in some form by the sixth grade. The misunderstandings about Fernandez's position, fueled by the tabloid press, contributed to the board's refusal to renew his contract in 1993.
Mayor Mike Bloomberg is defending the Harvey Milk School, saying at a news conference on July 28, "Some of the kids who are gays and lesbians have been constantly harassed and beaten in other schools," insisting that the school "sort of solves that problem. It gets them an education without having to worry."
But even with an expansion of Harvey Milk to 100 and later 170 students, it is clear that, in a system with more than a million students, most lesbian, gay, bisexual, and transgender youth will remain in mainstream schools. Debra Smock, administrator of the Harvey Milk School, said, "In a perfect world, there wouldn't be a need for Harvey Milk School." But the question is whether this school will be used as an excuse to abandon efforts to change the anti-gay atmosphere in the vast majority of mainstream schools.
There is school anti-bullying legislation still pending in Albany and in City Hall, described in my civil rights column in May. But these are just the kinds of moves opposed by the most vigorous opponents of the Harvey Milk School.
Some school systems elsewhere, including in small Midwestern towns, have instituted programming for gay students in response to successful civil rights lawsuits brought by gay young people who were repeatedly harassed and beaten in school while the administration looked the other way. No such lawsuit has been brought in New York, but that is what it might take to get the Department of Education to do more than create the safety valve of a Harvey Milk School.
Andy Humm is a former member of the City Commission on Human Rights, and co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.
More than 40 years ago Edward Culvert boarded a bus bound for the South in an effort to test President John F. Kennedy's commitment to civil rights. The mass action, part of the historic Freedom Rides of the 1960s, helped popularize the civil rights movement and laid the foundation for the many grass roots movements that define that period in American history. "If it worked once, why not repeat the process?" asked Culvert, now a professor of Black Studies at Lehman College.
Supporters of immigrant-rights are hoping to achieve similar results in the forthcoming Immigrant Workers Freedom Ride, an event inspired by the Freedom Rides that will bring thousands of advocates from across the nation to New York in an effort to draw attention to immigrants' rights and rally support for a new road map to U.S. citizenship.
The gathering, which is scheduled to take place on October 4 in Flushing Meadows Park, Queens, will mark the end of a journey from nine cities, with caravans expected to depart from Seattle, San Francisco, Los Angeles, Houston, Miami, Boston, Chicago Las Vegas and Minneapolis.
The riders expect to publicize the plight of immigrant workers through a number of events planned along the way, and will meet with Congressional representatives in Washington D.C. before arriving here. "The first Freedom Rides publicized something people really didn't know about," said Culvert. "This will do the same, but on an even larger scale."
Organizers, including the AFL-CIO and hundreds of faith-based organizations, are also hoping that the event will put the issue of immigrant workers' rights back on the national agenda as the 2004 presidential campaigns commence. Integrating the nation's estimated 11 to 18 million undocumented workers was a top priority in Washington throughout the early months of President George W. Bush's term, but largely fell away following the terrorist attacks of September 11, 2001.
" Many civil rights leaders are looking at the plight of immigrant workers in the same way they looked at the plight of African Americans and other minorities in the 1960s," said Brian McLaughlin, New York Assemblyman and president of the Central Labor Council who serves as the chairman of Freedom Ride. "September 11 accelerated concern over many of the civil rights and civil liberties for immigrants that are now jeopardized by the Homeland Security Act," said McLaughlin.
According to McLaughlin, Freedom Ride will focus on three demands:
• Legalization for all immigrant workers,
• The right of immigrant workers to reunite with their families
• Protection of immigrants in the workplace.
"Immigrants today are harassed in their communities, exploited at their job sites, and separated from their families," said McLaughlin.
The transfer of what was once the U.S. Immigration and Naturalization Service (INS) under the umbrella of the Department of Homeland Security and tough new immigration laws have further complicated the process of naturalization for undocumented workers, also known as illegal aliens. Indefinitely long waits and the threat of deportation often discourage immigrants from pursuing the legal path to citizenship, and according to Freedom Ride organizers, immigrants who endure the long road to citizenship sometimes spend years separated from their families.
Freedom Ride isn't the first collaboration between labor and immigration groups. A 1992 strike that pitted California drywallers -- mostly Mexican laborers -- against construction contractors, halted the construction of interior walls from the Mexican border to Santa Barbara for nearly a year. After blockading freeways and work sites with car caravans, drywallers gained important union contracts for immigrant workers.
Opponents of illegal immigration claim that naturalization services and civil rights should be reserved for immigrants who follow the proper legal channels, and place emphasis on the distinction between those immigrants who enter the country legally and those who don't. "Who would be against immigrant rights?" asked James M. Staudenraus, Eastern Field Coordinator for the Federation for American Immigration Reform (FAIR). "There are enormous differences between the rights of a legal immigrant, who is here with our country's permission, and people who are here in violation of federal immigration law."
Dave Rey, associate director of FAIR, called the equation of civil rights with the rights of immigrant workers "ludicrous". "Civil rights have nothing to do with the opening up of our borders," he said. "They are riding on the coattails of a completely different movement."
Many of the original Freedom Riders, however, disagree. "We may have come over on different ships but we're all in the same damn boat now," longtime civil rights leader Rev. Richard Lowery told the Seattle Post Intelligencer.
Lehman University's Culvert said that the Immigrant Workers Freedom Ride would likely draw even more support than the Freedom Rides of the civil rights movement.
"The second Freedom Ride, I think, will receive more attention than the first one, because changes in technology make it possible to reach a much wider audience," said Culvert. "The world is not as big as it used to be."
Robert Nolan is online editor of the Foreign Policy Association .