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I-9 E-Verify Immigration Compliance

Citizenship Status & National Origin Discrimination Claims Fail

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By: Bruce Buchanan, Sebelist Buchanan Law

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In Caltzoncin v. GSM Insurors-Glass, Sorenson & McDavid, 12 OCAHO no. 1287 (2016), the Office of Chief Administrative Hearing Officer (OCAHO) reiterated the longstanding requirement to prove citizenship status – one must be a citizen or national of the United States, permanent resident, refugee, or asylee in order to be a protected individual.

In this case, Mr. Caltzoncin filed a complaint against his employer alleging he was fired on the basis of his citizenship status and national origin discrimination. In Mr. Caltzoncin’s complaint, he conceded that he only had an employment authorization document (EAD) and was not a citizen, permanent resident, asylee or refugee. Under 8 U.S.C. § 13246(a)(3), an individual with an EAD is not protected by the Immigration Reform and Control Act (IRCA). Thus, OCAHO dismissed Mr. Caltzoncin’s complaint.

Concerning the national origin claim, Mr. Caltzoncin conceded that his former employer employed 15 or more employees. Again, under the law, concerning a national origin claim, an employer with 15 or more employees is not covered by IRCA; rather, the employer is covered by Title VII. Thus, Mr. Caltzoncin’s claim should have been directed to the EEOC, not the Office of Special Counsel for Immigration – Related Unfair Employment Practices (OSC). Thus, OCAHO also dismissed this claim.

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Comments

  1. Retired INS's Avatar
    This case is already weak. Why would he be hired in the first place if the employer discriminated against citizens with his nationality? Of course, the hiring and firing could be done by different people. As a former federal employer I had this same complaint made against me twice. Someone complained I didn't hire him because he was Italian. I had selected a different Italian for the job, but when he turned it down, I went with a Hispanic. In another case an allegation was made I didn't hire him because he was Hispanic. I pointed out I had hired a Cuban. He complained that Cubans don't count as real Hispanics. He was from Mexico. Naturally, I won both cases.
  2. newacct's Avatar
    Interesting. So does that mean employers can explicitly refuse to hire EAD holders because they are not a protected class?
  3. Retired INS's Avatar
    Quote Originally Posted by newacct
    Interesting. So does that mean employers can explicitly refuse to hire EAD holders because they are not a protected class?
    Employers should hire the best qualified. In many occupations there are few job applicants, such as in agriculture. Anyone with an EAD is fair game to hire. However, if you are looking for a permanent employee, on whom you will spend thousands of dollars to train, you might want someone whose EAD does not expire sometime in the next two years. I don't see that as discrimination.
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