Employment Discrimination Based on Immigration Status: Recent Cases Involving H-1B Visas

Article
  • 304 Downloads

Abstract

The worldwide economic downturn has seen a reversal in previous trends toward offshore staffing and an increase in protectionism toward home country labor. However, employers in the U.S. face potential legal liability if they favor American citizens over authorized foreign guest workers in layoffs, pay decisions, and other such actions. Thus far, employers have succeeded in defending most discrimination claims involving citizenship or immigration status—which often are made by out-of-work plaintiffs unable to afford legal representation—on technical grounds such as faulty pleading, failure to exhaust administrative remedies, filing with the wrong administrative agency, or mischaracterizing immigration claims as ones involving national origin status. These results notwithstanding, a closer reading of the cases suggests that substantive liability may be a matter of growing concern as plaintiffs or their counsel learn to correct such errors. The issues are important to both sides of the employment relationship in today’s global labor market; foreign guest workers will want to better understand their responsibilities and rights, while businesses will want to better manage their legal risks. Because little if any scholarly research has addressed these matters, an exploratory case law review is presented in an effort to identify trends in fact patterns that have generated such issues. Based on the results, practical recommendations are offered for improving the management of U.S. employment relationships that involve foreign guest workers.

Key words

Employment discrimination Citizenship Immigration status H-1B visas 

References

  1. Cunningham-Parmeter, K. (2009). Redefining the rights of undocumented workers. The American University Law Review, 58, 1361–1415.Google Scholar
  2. Elmore, A. J. (2007). Egalitarianism and exclusion: U.S. guest worker programs and a non-subordination approach to the labor-based admission of nonprofessional foreign nationals. Georgetown Immigration Law Journal, 21, 521–539.Google Scholar
  3. Foreign labour sparks strikes across Britain. Financial Times, February 1, 2009.Google Scholar
  4. France: A time of troubles and protest. The Economist, January 24, 2009.Google Scholar
  5. Globalisation under strain: Homeward bound. The Economist, February 7, 2009.Google Scholar
  6. H-1B visa holders must find jobs or go home. San Jose Mercury News, February 2, 2009.Google Scholar
  7. Hahm, J. S. (2000). American Competitiveness and Workforce Improvement Act of 1998 Balancing economic and labor interests under the new H-1B Visa program. Cornell Law Review, 85, 1673–1701.Google Scholar
  8. Klaeren, K. (2008). Moving toward a more protective interpretation of national origin discrimination under Title VII. University of Cincinnati Law Review, 77, 349–381.Google Scholar
  9. Robinson, A. J. (2009). Language, national origin, and employment discrimination: The importance of the EEOC guidelines. University of Pennsylvania Law Review, 157, 1513–1539.Google Scholar
  10. Rodriguez, C. M. (2007). Guest workers and integration: Toward a theory of what immigrants and Americans owe one another. University of Chicago Legal Forum, 219–231.Google Scholar
  11. White, E. B. (2007). How we treat our guests: Mobilizing employment discrimination protections in a guest worker program. Berkeley Journal of Employment & Labor Law, 28, 269–288.Google Scholar

CASES CITED

  1. Andonissamy v. Hewlett-Packard, 547 F.3d 841 (7th Cir. 2008)Google Scholar
  2. Biran v. JP Morgan Chase, U.S. Dist. LEXIS 17076 (S.D. N.Y. 2002)Google Scholar
  3. Ficq v. Texas Instruments, U.S. Dist. LEXIS 28755 (N.D. Tex. 2004)Google Scholar
  4. Huang v. Washington Mutual Bank et al., U.S. Dist. LEXIS 108020 (W.D. Wash. 2008)Google Scholar
  5. Karakozova v. University of Pittsburgh, U.S. Dist. LEXIS 49027 (W.D. Penn. 2009)Google Scholar
  6. Liu v. BASF et al., 609 F. Supp. 2d 828 (S.D. Iowa, 2009)Google Scholar
  7. Ndiaye v. CVS Pharmacy, 547 F. Supp. 2d 807 (S.D. Ohio 2007)Google Scholar
  8. Olvera-Morales v. Int’l Labor Mgmt. Corp. et al., U.S. Dist. LEXIS 3502 (M.D. N.C. 2008)Google Scholar
  9. Roche v. La Cie, Ltd. et al., U.S. Dist. LEXIS 114500 (D. Ore. 2009)Google Scholar
  10. Shah et al. v. Wilco Systems et al., 126 F. Supp. 2d 641 (S.D. N.Y. 2000)Google Scholar
  11. Shankar v. ACS-GSI, U.S. Dist. LEXIS 22390 (D. C. 2006)Google Scholar
  12. Sodipo v. Caymas Systems, U.S. Dist. LEXIS62169 (N.D. Ca 2007)Google Scholar
  13. Tseng v. Florida A&M University et al., U.S. Dist. LEXIS 91129 (N.D. Fla. 2009)Google Scholar
  14. Venkatraman v. REI Systems, 417 F.3d 418 (4th Cir. 2004)Google Scholar
  15. Watson v. Electronic Data Systems et al., U.S. Dist. LEXIS 10954 (N.D. Tex. 2004)Google Scholar
  16. Zhang v. Honeywell Int’l, U.S. Dist. LEXIS 90781; 57450 (D. Ariz. 2009; 2010)Google Scholar

Copyright information

© Springer Science+Business Media, LLC 2011

Authors and Affiliations

  1. 1.College of BusinessSan Jose State UniversitySan JoseUSA

Personalised recommendations