Can You Be Fired Because of Your Nationality or Immigration Status in New York?

Take a hypothetical. A picker at a distribution warehouse in Hauppauge with a few hundred employees was born in Ecuador and is a lawful permanent resident. On her first day the shift manager looked at her driver’s license and Social Security card and told her to come back with her green card. She did. Months later a new supervisor started mimicking her accent at the morning huddle and told her she could not speak Spanish anywhere in the building, breaks included. She emailed human resources. Three weeks after that email, she was let go for “attitude.”

Can a New York employer fire you because of where you are from, your citizenship or your immigration status? No, with one narrow exception for actions the law itself requires. This is general information, not advice about any one claim. Our Long Island employment discrimination lawyer page covers how these cases are brought.

Which laws protect you, and against which employers

Which of four laws apply depends on where you work and how many people your employer has.

The broadest is the New York State Human Rights Law. Executive Law § 296 lists “national origin, citizenship or immigration status” among the protected characteristics, and § 292(5) defines “employer” to include “all employers within the state,” so a two-person landscaping company in Smithtown is covered as surely as a hospital system in Manhasset. New York City’s law adds protection for “actual or perceived” national origin and immigration or citizenship status, but only for work in the five boroughs. Title VII reaches national origin, not citizenship, and only at employers with fifteen or more employees. The federal immigration statute fills part of that gap for employers with four or more, protecting citizens and certain lawful permanent residents, refugees and asylees from citizenship-status discrimination.

Consequently, a worker on Long Island starts with the state law and adds the federal laws where the employer is large enough. The cards below put the four side by side.

What national origin discrimination looks like at work

National origin is not only the country printed on a passport. The EEOC’s regulation defines it to include an ancestor’s place of origin and “the physical, cultural or linguistic characteristics of a national origin group.” New York City’s law reaches “actual or perceived” national origin, so an employer who guesses wrong about where someone is from can still be liable.

The evidence usually looks ordinary: comments about an accent, a language rule with no work reason, schedules or discipline that track who was born where. Hiring is covered as well: the state law forbids any application form or pre-employment inquiry that “expresses directly or indirectly, any limitation” based on these characteristics, unless based on a bona fide occupational qualification.

The EEOC presumes that a rule requiring employees to speak only English “at all times in the workplace” violates Title VII. A rule limited to certain times can stand where the employer shows business necessity, and the EEOC treats enforcing one that employees were never told about as evidence of discrimination. The picker’s supervisor banned Spanish on breaks with no reason given.

Under the state law, harassment based on a protected characteristic is unlawful “regardless of whether such harassment would be considered severe or pervasive,” and the employer’s defense is limited to conduct no worse than “petty slights or trivial inconveniences.” Our post on racist texts, memes and graffiti at work shows how that standard is applied. In practice, mockery of an accent at a daily meeting is worth writing down the day it happens.

Citizenship and immigration status: what the law forbids and what it requires

New York defines “citizenship or immigration status” as “the citizenship of any person or the immigration status of any person who is not a citizen of the United States.” Under the state law, an employer may not refuse to hire a lawful permanent resident because it would rather have citizens (federal law permits a preference only between equally qualified candidates), or fire a worker on a work visa because of that visa, when no law calls for it.

The same definition carries the limit. “Nothing in this article shall preclude verification of citizenship or immigration status where required by law, nor shall an adverse action based on verification of citizenship or immigration status be prohibited where such adverse action is required by law.” Federal law is the main source of that requirement. It makes it unlawful for an employer to hire, or to “continue to employ,” a person knowing that the person is not authorized to work in the United States. New York City’s law has a parallel exception for discrimination that is “required” by law.

So the answer has two parts. An employer that learns through verification that a worker is not authorized to work can act on it, because federal law requires it. An employer that uses status as a label for something else, or singles out one nationality for extra checks, is exposed under the state law. The evidence is timing and comparison: who else was checked, and what happened right before.

The I-9: you choose the documents

Every new hire completes a Form I-9. The federal regulation gives the choice of documents to the worker: “The individual may present either an original document which establishes both employment authorization and identity, or an original document which establishes employment authorization and a separate original document which establishes identity.” The employer completes its section within three business days of the hire.

What the employer may not do, to discriminate, is ask for “more or different documents” than the law requires or reject documents that “on their face reasonably appear to be genuine.” The Justice Department’s Immigrant and Employee Rights Section says the rule applies to employers of any size and covers requesting specific documents. The green-card demand on the picker’s first day is what the rule describes.

So everyone has to fill out an I-9, that’s a federal immigration law requirement. But you get to pick the documents, not your boss. So if you present a driver’s license and a Social Security card and they look real, the employer is not allowed to demand that you show them your green card on top of that just because of where you’re from. Write down who asked for what and when they asked for it, in a personal email that you keep, not in your head.

Threats to call immigration are retaliation

Some employers threaten instead of firing. Labor Law § 215 forbids retaliation against an employee who complains about conduct the employee reasonably and in good faith believes violates the Labor Law, and it says retaliation “includes; threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member” to a government agency. The complaint does not need to name a section of the law.

A court may order reinstatement or front pay, lost compensation and fees, and “shall award liquidated damages” of up to $20,000. The employee has two years to sue. The section does not reach State or municipal employees, who may look to the narrower Civil Service Law § 75-b.

Labor Law § 740 carries the same immigration-threat language in its definition of retaliatory action. It protects an employee who tells a supervisor about, or objects to, a practice the employee reasonably believes violates a law, rule or regulation; the court may order reinstatement or front pay, lost wages, fees and punitive damages for a willful, malicious or wanton violation, and the parties are entitled to a jury. When the complaint was about discrimination itself, as with the picker’s email, Executive Law § 296(7) applies, and in the five boroughs the city’s retaliation rule as well. Our post on the retaliation standard after 2019 explains how those claims are proved.

And then comes New York’s labor law. What does it say? It says if someone threatens to report your immigration status, or that of a family member, to the authorities because you complained about a labor law violation, that is retaliation under Labor Law section 215. So an employer who isn’t happy with somebody who has exercised their rights can end up on the wrong end of a lawsuit for retaliation. That’s always the big play. There’s a retaliation hook. You have two years to go to court.

If immigration agents have actually come to the workplace, our guide to ICE at your workplace on Long Island covers warrants and what to say.

Where to file, and what each door can pay

Some doors are administrative, where an agency investigates and its own judge decides. Others are lawsuits in court for damages.

You have to know which laws you can litigate for damages, which ones are administrative. A charge with the Justice Department’s Immigrant and Employee Rights Section is administrative. It goes to an administrative law judge. Back pay is limited to two years prior to when the charge was filed. An EEOC charge is also administrative. A lawsuit for damages is brought under the state Human Rights Law, and in the five boroughs, the city law. What are your damages? Lost pay, other damages, attorney’s fees, and against a private employer, punitive damages.

Two cautions. An EEOC charge is also the required first step to a Title VII lawsuit, due within 90 days after the EEOC’s notice. And the doors interact: the immigration statute bars a national-origin charge on facts already charged with the EEOC, and a Division of Human Rights complaint generally closes the state court door for the same grievance. Consequently, decide which door to open before you open one. Our post on choosing between an EEOC charge and a New York lawsuit walks through that choice. The clocks below run from the day of the discriminatory act; a state Human Rights Law lawsuit in court is an action on a liability created by statute, which CPLR 214(2) gives three years, the same window our EEOC-or-lawsuit post uses. Have a lawyer confirm the date early, because what you file first can pause that clock or close the court route.

Bring these to the first call

A lawyer looking at one of these claims asks for the same few things, and most of them disappear when the work email is shut off.

Back to the picker in Hauppauge

Her employer has more than fifteen employees and works in Suffolk County, so the state Human Rights Law and Title VII both apply, and the city law does not. The green-card demand on her first day is a document-abuse question for the Justice Department’s section, on a 180-day clock that runs from the day of the demand. The accent mimicry and the all-day Spanish ban are evidence of national origin discrimination and harassment under the state law. Her email to human resources was a complaint about discrimination, so a firing three weeks later raises retaliation under Executive Law § 296(7). “Attitude” is the employer’s word; the record she keeps now decides whether it was the real one. Our checklist for the first 24 hours after a wrongful termination lists what to save before access ends.

Sources

• New York Executive Law § 296, Unlawful discriminatory practices
• New York Executive Law § 292, Definitions (subdivisions 5 and 41)
• New York Executive Law § 297, Procedure
• New York Executive Law § 300, Construction
• New York Labor Law § 215, Prohibited retaliation
• New York Labor Law § 740, Retaliatory action by employers
• New York City Human Rights Law, Admin Code Title 8, Chapter 1 (§§ 8-102, 8-107, 8-109, 8-130)
• New York City Human Rights Law, Chapter 5 (§ 8-502)
• 42 USC § 2000e (definitions), § 2000e-2 and § 2000e-5
• 29 CFR § 1606.1, Definition of national origin discrimination and § 1606.7, Speak-English-only rules
• 8 USC § 1324b, Unfair immigration-related employment practices
• 8 USC § 1324a, Unlawful employment of aliens
• 8 CFR § 274a.2, Verification of identity and employment authorization
• U.S. Department of Justice, Immigrant and Employee Rights Section, Types of Discrimination
• U.S. Department of Justice, Immigrant and Employee Rights Section, Filing a Charge
• EEOC, Time Limits for Filing a Charge

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Where you were born, how you sound and what your papers say are not reasons to fire you in New York, except where the law itself requires the employer to act. Our employment law practice handles these claims against employers.

If you were fired, harassed or threatened at work because of your national origin, citizenship or immigration status, call (516) 750-0595 with your termination letter or your notes of what was said, or request a free case review.