Since most of the cases involving IRCA's prohibition against citizenship status discrimination involve permanent residents, temporary residents, asylees and refugees, it is worth reiterating that IRCA protects "U.S. workers", i.e., citizens, as well as permanent residents, temporary residents, asylees, and refugees from such discrimination. As the ALJ pointed out in Yefremov v. NYC Dep't of Transp.:
OCAHO cases have addressed the liability of employers for discriminatorily failing to hire or for discharging U.S. citizens to the advantage of non-citizen employees [citations omitted]. Although no such case has yet found liability, it is well settled that a factual scenario may develop where an employer will be found to have discriminated against a U.S. citizen in favor of a non-citizen. [citations omitted].(117)It is this symmetry, i.e., the protection of both citizens and authorized aliens from citizenship status discrimination, that potentially makes the antidiscrimination provision a valuable tool in demonstrating that fears against legal immigration are unwarranted. By utilizing the provision to protect U.S. citizens from unlawful discrimination in favor of aliens, a mechanism is set in place that puts the purveyors of immigrant bias to the test. If employers are unlawfully hiring legal aliens over citizens, that is citizenship status discrimination and Section 102 provides a remedy. If such allegations cannot be proven, it is a demonstration that the fear that legal immigration is depriving citizens of employment is untrue. In addition, this view of Section 102 helps build a public consensus for all of OSC's activities, 99% of which historically involve allegations of employment discrimination against work authorized aliens. It should help the voting public understand they have as much at stake in OSC's activities as work authorized aliens do.
OSC has brought a number of cases before ALJs alleging that employers have unlawfully favored aliens in various temporary nonimmigrant visa categories over U.S. workers. In United States v. McDonnell Douglas, OSC alleged that the McDonnell Douglas Corporation engaged in a pattern or practice of employment discrimination with respect to its hiring of jig and fixture builders for its contract with the Air Force to construct C-17 aircraft. OSC also alleged that qualified U.S. workers, who applied as jig and fixture builders, were rejected by the respondent while it obtained labor certification for workers from the United Kingdom. The company obtained these workers using the H-2B visa process. See United States v. McDonnell Douglas,(118)
In moving to have the complaint dismissed, the respondent argued, among other things, that the complaint was an attack on the H-2B visa process.(119) To maintain such an attack, the respondent asserted it was necessary for the complaint to allege fraud. Since the complaint did not allege fraud, the respondent argued, it should be dismissed. In addition, the respondent maintained that if fraud was committed during the certification process, it operated against the Department of Labor (DOL) and/or INS, and not against the U.S. workers alleged to be injured here. Thus, the respondent concluded any allegations of misrepresentation were not triable in an IRCA forum.
The ALJ denied the motion to dismiss. He found that the issues here were no different than those in any other citizenship status complaint. He stated:
Whether or not Respondent acted properly in pursuit of this certification does not really change the nature of the action. Complainant must still bear the burden of proving that discrimination existed in the failure to hire these 22 individuals. The use of the H-2B program by Respondent is not the primary focus in that proof . . . . (120)
In focusing on the allegations of citizenship status discrimination, the ALJ concluded:Whether respondent went about its recruitment and application activities under the H-2B program properly or improperly does not appear to affect the underlying issue at hand. My understanding of the case, in its simplest terms, is that Complainant alleges a preference on the part of Respondent for foreign workers. This preference caused Respondent to hire U.K workers at the same time it was rejecting U.S. applicants who sought jig and fixture positions. Just how Respondent went about this hiring of foreign workers does not appear to be a central issue in this case. Complainant's burden is simply to prove that the preference existed and that discrimination of U.S. workers occurred as a result. Similarly, Respondent's defense does not appear to hinge on whether it went about its application process correctly.(121)
Subsequent to this decision, OSC has investigated allegations of citizenship status discrimination involving the H-2A visa program. During an independent investigation conducted by OSC,(122) the Carolina Employers Association (CEA) moved to quash a subpoena(123) arguing:
that OSC lacks subject matter jurisdiction over the H-2A violations of the Immigration and Nationality Act (INA) which OSC is investigating, because the H-2A provisions of INA apply to temporary foreign agricultural workers over which and whom the Department of Labor (DOL) has exclusive investigative jurisdiction. CEA also contends that the H-2A 50% rule[(124)] violations for which it has been cited by DOL, and for which CEA has paid a $500 civil penalty, do not constitute unfair immigration-related employment practices over which, it concedes, OSC does have exclusive enforcement jurisdiction.(125)
The ALJ noted that "OSC countered this objection by averring that it is not investigating H-2A violations and points out that petitioner's assertion that the fact that petitioner's hiring and recruitment process is controlled in part by DOL's H-2A regulations does not limit OSC's investigatory authority under IRCA." The ALJ concluded:
Petitioner's argument is without merit. Under IRCA, OSC is tasked with investigating allegations of unfair immigration-related employment discrimination. 8 USC Â§1324b(d). It is true, as petitioner asserts, that the OSC's investigatory jurisdiction is not unlimited, and that IRCA specifically exempts from the definition of "unfair immigration-related employment practice" discrimination which is based upon citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential . . . . Because these factual scenarios are inapplicable under the facts at issue, that argumentation does not constitute a valid objection to enforcement of the OSC subpoena under consideration.(126)
OSC's most ambitious effort in this area was its action against the General Dynamics Corporation (GD). The case alleged that General Dynamics contracted with Falcon International and its subsidiary GK Industries (Falcon/GK) to provide contract British jig and fixture workers on temporary nonimmigrant visas(127) in violation of IRCA's prohibition against citizenship status discrimination.(128) As characterized by the ALJ:
OSC's theory of discrimination is that from March to September 1990, GD maintained a policy of knowingly and intentionally preferring to hire individuals whom GD understood to be British workers on temporary work visas [footnote omitted] as contract jig and fixture workers, while rejecting qualified U.S. workers. [the ALJ noted that "U.S. workers" are individuals protected against citizenship status discrimination under IRCA].(129)
He viewed OSC as contending that:
[GD's] true motive in entering into the Contract is captured by the [contract] Proposal [appendix omitted], which explains the dilemma of companies such as [GD] who only need these workers "for a finite period of time." As the Proposal elaborates the challenge is guaranteeing that the company can keep the workers while it needs them without having them run off to another company, or to a technical service firm who will pay them more. The solution of many companies, says the Proposal, has been to get foreign labor Â especially foreign labor from the United Kingdom. And one of the great advantages to this, according to the Proposal, is that it solves the problem of worker mobility because the foreign workers "are basically indentured to the company(s) sponsoring their employment tenure." (130)
In essence, OSC alleged that General Dynamics reserved a fixed number of jig and fixture worker jobs for individuals on temporary nonimmigrant visas regardless of whether there were qualified U.S. workers available. In fact the ALJ found that Falcon/GK contract excluded U.S. workers from consideration and General Dynamics knew it.(131) He further found:
. . . that GD's failure to select a single U.S. jig and fixture builder until it has obtained all 25 British citizen workers when more than 25 qualified U.S. workers were available, establishes an inference that GD intentionally discriminated based on citizenship status. In addition, I find, based on the fact that during the span of several months in 1990, Respondent hired a grossly disproportionate number of non-U.S. worker applicants than U.S. worker applicants pursuant to a contract which Respondent subsequently renewed, along with the fact that qualified U.S. workers were available, to make a prima facie case of a pattern and practice of discrimination based on citizenship status.(132)
OSC ultimately did not prevail in this action because the ALJ found that General Dynamics had legitimate nondiscriminatory reasons for its conduct. While there were numerous subsidiary arguments,(133) as to OSC's primary allegation that a fixed number of jig and fixture jobs were reserved for individuals on temporary nonimmigrant work-related visas regardless of the availability of qualified U.S. workers, the ALJ concluded:
. . . I find that resumes of U.S. workers were not reviewed and their qualifications were not compared to those of Falcon/GK workers. I further find, however, that Respondent's failure to do so does not demonstrate an intent to discriminate based on citizenship status. Rather, I find that the Falcon/GK contract was a unique procurement sought for legitimate business reasons. Furthermore, I find credible Respondent's statement that the only reason "'qualified' B&M or ITS workers [(134)] were knowingly rejected' over the period of a few months at issue was the company's failure to consider their resumes due to "the unusually frantic press of business."
In summing up his decision, the ALJ concluded:I find that it was legitimate for GD to prefer the Falcon/GK workers over U.S. workers because I find that the Respondent did not consider the citizenship status of the workers in deciding to hire them as contract jig and fixture workers. [footnote omitted]. (135)* * * * *
Finally, OSC contends that:
[t]he fact that [GD] chose to engage in this discriminatory conduct through a contract should not, and does not, insulate it from having engaged in an unlawful pattern and practice of discrimination. Finding otherwise sets forth a road map by which all companies so inclined can employ individuals "indentured to the company" to the exclusion of U.S. workers with impunity.
While I can conceive of a situation in which an employer's use of a contract for contract labor could be the basis for a finding of a policy of intentional discrimination, I do not find such circumstances in this case.(136)
The ALJ denied General Dynamics' request for attorney's fees. General Dynamics appealed. The 9th Circuit Court of Appeals found that IRCA had not waived sovereign immunity and that the United States was immune from a claim for attorney's fees. General Dynamics Corp. v. United States.(137) The United States did not pursue an appeal.
Numerous ALJ decisions suggest that, in appropriate circumstances, it is citizenship status discrimination to prefer temporary nonimmigrant foreign labor over available and qualified U.S. workers. Even General Dynamics suggests such circumstances could exist. If that is so, IRCA's prohibition against citizenship status discrimination provides a vehicle for preventing the "job stealing" that those opposed to such programs suggest is a problem. Vigorous enforcement, not immigration restrictions, should provide an adequate remedy.
If an employer does not have a preference for foreign workers over qualified and available U.S. workers protected from citizenship status, there is no conflict with these programs. Most of them already require employers to certify to the lack of availability of U.S. workers. What IRCA's antidiscrimination provision does is provide a remedy to those discriminated against when the practice does not conform to the promise. And as an important byproduct, it defuses the argument that these programs need to be limited.
After General Dynamics, it remains to be seen whether the tool provided by IRCA's antidiscrimination provision lives up to its potential. Since OSC's merger into the Civil Rights Division, there appears to have been a hiatus in using Section 102 against unscrupulous employers who discriminate among aliens or between work authorized aliens and citizens.
Whether it can still happen remains to be seen.