Civil Lawsuits and Pascrell's Bill

Date: Tuesday, December 21, 2004 2:44 PM

JOB DESTRUCTION NEWSLETTER

by Rob Sanchez
December 21, 2004. No. 1164

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Thanks to Sona Shah for spending lots of time on the phone to explain
some of the legal stuff to me. She also helped to edit the following
paper. Neither of us are lawyers so don't use this as legal advice.

To read Shah's testimony to Congress, go to this webpage:
http://wwwc.house.gov/International_Relations/108/sha020404.htm

To see Shah kick Robert Reich's b_utt in a debate, follow these
instructions:
Go to http://www.outsourcecongress.org/
Click "videos" on the left side of page
Download this video to your hard drive by left clicking and "Save
Target As"
"04/23/2004 CNNfn 03/20/2004 - Sona Shah/Robert Reich debate"

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In my recent newsletter about Pascrell's "Defend the American Dream Act
of 2004" I commented that "Section 5" of the bill was superflous
because American citizens already have the right to file civil lawsuits
in cases where employers discriminated against them on the basis of the
fact that they were American citizens. I incorrectly assumed that there
is nothing to prohibit such a lawsuit. The situation is far worse than
I thought, and the rest of this newsletter explains why.

I might have been correct that there is nothing to prohibit civil
actions, but more importantly I missed the fact that there is no law
that allows civil suits in these cases, and that is a major road-block
for anyone who considers a lawsuit. Specifically there is no law which
addresses the discrimination suffered by either American citizens or
nonimmigrant (NIV) guest workers that is caused by the abuse H-1B or L1
visas.

The problem for American workers is worsened by the fact that companies
don't have to consider American citizens before they hire a foreign
worker on H-1B or L-1 visas. Bill A. Belt, Regional Administrator for
the US Dept. of Labor, put it very bluntly when he said, "There is
nothing in the H-1B provisions of the Immigration and Nationality Act
which requires an employer to make any effort to hire domestic workers
or United States Citizens before they can be authorized to employee
nonimmigrant aliens." Dale Ziegler, Chief, Division of Foreign Labor
Certifications at the Department of Labor, said that, "Unlike the
permanent and temporary labor certification programs, Congress did not
include a requirement for a labor market test, or a no-layoff
provision, under the H-1B program. Therefore, the Department does not
have any information concerning employers' efforts to recruit U.S.
workers for the position, nor are employers required to provide such
information." Of course who can forget immigration attorney Joel
Stewart's famous quote: "When employers feel the need to legalize
aliens, it may be due to a shortage of suitable U.S. workers, but even
in a depressed economy, Employers who favor aliens have an arsenal of
legal means to reject all U.S. workers who apply."

In order to file a lawsuit against an employment wrongdoing, there has
to be a statute which states that the wrongdoing is illegal. American
citizens are often denied employment opportunities when employers have
access to NIVs and guest-workers are typically underpaid but that
doesn't mean they can file lawsuits to correct the problem. The closest
tool workers currently have on a federal level to address this type of
discrimination is the Civil Rights Act of 1964, also known as Title
VII, but that regulation is not adequate for these types of lawsuits.
Protected classes of employment discrimination is defined by anyone who
suffers discrimination because of their age, sex, race, national
origin, disability, creed or religion - not citizenship or immigration
status!

The protected class that comes closest to describing what American
workers are facing is discrimination based on "national origin". U.S.
workers displaced by NIVs are not necessarily being discriminated
against because they are Americans but because they are American
CITIZENS. This might seem like a small distinction but in a court of
law it's very significant. What it boils down to is a definition of
"American", which is considered a national origin status, or being an
"American Citizen" which is an individual's immigration status.

Most people can't claim discrimination based on national origin because
it can be argued that the only real Americans are Native American
Indians even though most of us are born in the USA (contrary to popular
myth we are a nation of native born citizens, not immigrants). American
citizens could in theory bring a claim of discrimination based on
national origin as a reverse discrimination claim but so far no one has
succeeded with this approach.

American citizens aren't the only ones that suffer discrimination on
the job. NIVs on H-1B, H-2B, or L-1 visas are effectively indentured to
their employer which makes it difficult to change to another employer
if they are underpaid or mistreated. NIVs aren't being discriminated
against based on their national origin but rather because they are not
citizens. Being on a visa gives them an "immigration status" instead of
national origin. Unfortunately for the NIVs, and for American citizens,
there is no federal law and no protected category within Title VII
which says it is illegal to discriminate against someone based on their
immigration status. American citizens and NIVs are effectively lumped
into the "immigrant status" category and therefore are not protected.

It is very important to note that if an American citizen is replaced by
an H-1B or denied a job because of his/her citizenship it is not
considered discrimination based on national origin, and therefore there
are no protective laws or precedents to use in a civil case. Most
employer pundits would argue that NIVs are preferred because they are
harder working or they work for less, and therefore discrimination has
nothing to do with the fact that an American was replaced by a foreign
worker. Of course when those arguments don't work they can always claim
that there is a shortage of Americans that are qualified or willing to
do the job. We know that many employers discriminate against American
workers because they are citizens - Tata Consultancy is an infamous
example but many other employers such as Sun Microsystems and
Hewlett-Packard have been accused of similar practices.

The New York City Human Rights Law is one of the most comprehensive
civil rights laws in the nation and may be the only one that protects
workers from citizenship discrimination. This law enabled activist Sona
Shah to file a lawsuit based on this kind of discrimination. Shah's
case is interesting because although she is of Indian descent, she is
an American citizen who suffered employment discrimination because of
her citizenship status as an American, not her race. Shah claims that
she her employer discriminated against her because of her national
origin. For those of you that want quick results, keep in mind that
Shah's efforts have been ongoing for six years with no end in sight.

American workers such as Shah quickly find out how difficult it is to
file civil charges against their employers. So far lawyers have been
unwilling to take the huge financial risk to set a precedent by filing
a lawsuit based solely on national origin. Until several of these
lawsuits have been won, and precedents have been set, lawyers will
continue to be very reluctant to spend years of time and vast sums of
money to defend American workers. The only alternative American workers
have is to file complaints with the DOL or the EEOC, but so far these
government agencies have been almost totally unwilling to hear a case
on behalf of U.S. citizens, and when they do their efforts are very
feeble. There have been some cases where foreign workers were able to
use the DOL to successfully file complaints but American citizens are
generally out of luck. Our government isn't oriented towards protecting
American citizens.

It is perhaps the height of irony that we are supposedly a nation of
immigrants and yet our federal laws don't include immigration status as
a protected category. Neither American citizens nor NIVs have the
remedy on a federal level which the New York City Human Rights Law
("NYCHRL") provides on a city level. There is also a New York State
Human Rights Law ("NYSHRL") similar to the city one.

Pascrell's law would expand this right to file civil lawsuits to all
states - and that is perhaps the most powerful part of his bill. Many
improvements made on behalf of the people living on American soil can
be accredited to lawsuits. We live in a society where we abhor
litigation in theory but the critics of litigation forget an important
point - that we also live in a capitalistic economy significantly
affected by corporations whose bottom line influences their actions.
Until it becomes expensive for employers to harm someone they are
unlikely to stop their behavior if profits would be affected. Reality
dictates that people need to fight back by using the legal system.
Until and unless we change our economy and political system to
something other than capitalism, litigation is the price we pay to
secure and further human rights.

HOW TO FIND THE PASCRELL'S BILL:

Rep. Bill Pascrell (D-NJ) introduced a new bill to reform the H-1B visa
program is titled the "Defend the American Dream Act of 2004".

To review the American Dream Act follow these instructions:

1) go to http://thomas.loc.gov
2) enter H.R. 5413 into the search engine

The American Dream Act is written as a series of amendments to the
following statute at:
www.usdoj.gov/crt/osc/ref/8usc1182n.htm

CONTACT REP. BILL PASCRELL:

Pascrell's website is at:
http://www.pascrell.house.gov/

Click "Contact Bill" to give them feedback. Give Pascrell your support
and try to get your representative to sponsor his bill.

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