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U.S. Code as of:
01/03/05
Section 1324b. Unfair immigration-related employment practices
(a) Prohibition of discrimination based on national origin or
citizenship status
(1) General rule
It is an unfair immigration-related employment practice for a
person or other entity to discriminate against any individual
(other than an unauthorized alien, as defined in section
1324a(h)(3) of this title) with respect to the hiring, or
recruitment or referral for a fee, of the individual for
employment or the discharging of the individual from employment -
(A) because of such individual's national origin, or
(B) in the case of a protected individual (as defined in
paragraph (3)), because of such individual's citizenship
status.
(2) Exceptions
Paragraph (1) shall not apply to -
(A) a person or other entity that employs three or fewer
employees,
(B) a person's or entity's discrimination because of an
individual's national origin if the discrimination with respect
to that person or entity and that individual is covered under
section 703 of the Civil Rights Act of 1964 [42 U.S.C.
2000e-2], or
(C) discrimination because of 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 for an employer to do business with an agency
or department of the Federal, State, or local government.
(3) "Protected individual" defined
As used in paragraph (1), the term "protected individual" means
an individual who -
(A) is a citizen or national of the United States, or
(B) is an alien who is lawfully admitted for permanent
residence, is granted the status of an alien lawfully admitted
for temporary residence under section 1160(a) or 1255a(a)(1) of
this title, is admitted as a refugee under section 1157 of this
title, or is granted asylum under section 1158 of this title;
but does not include (i) an alien who fails to apply for
naturalization within six months of the date the alien first
becomes eligible (by virtue of period of lawful permanent
residence) to apply for naturalization or, if later, within six
months after November 6, 1986, and (ii) an alien who has
applied on a timely basis, but has not been naturalized as a
citizen within 2 years after the date of the application,
unless the alien can establish that the alien is actively
pursuing naturalization, except that time consumed in the
Service's processing the application shall not be counted
toward the 2-year period.
(4) Additional exception providing right to prefer equally
qualified citizens
Notwithstanding any other provision of this section, it is not
an unfair immigration-related employment practice for a person or
other entity to prefer to hire, recruit, or refer an individual
who is a citizen or national of the United States over another
individual who is an alien if the two individuals are equally
qualified.
(5) Prohibition of intimidation or retaliation
It is also an unfair immigration-related employment practice
for a person or other entity to intimidate, threaten, coerce, or
retaliate against any individual for the purpose of interfering
with any right or privilege secured under this section or because
the individual intends to file or has filed a charge or a
complaint, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this section. An
individual so intimidated, threatened, coerced, or retaliated
against shall be considered, for purposes of subsections (d) and
(g) of this section, to have been discriminated against.
(6) Treatment of certain documentary practices as employment
practices
A person's or other entity's request, for purposes of
satisfying the requirements of section 1324a(b) of this title,
for more or different documents than are required under such
section or refusing to honor documents tendered that on their
face reasonably appear to be genuine shall be treated as an
unfair immigration-related employment practice if made for the
purpose or with the intent of discriminating against an
individual in violation of paragraph (1).
(b) Charges of violations
(1) In general
Except as provided in paragraph (2), any person alleging that
the person is adversely affected directly by an unfair
immigration-related employment practice (or a person on that
person's behalf) or an officer of the Service alleging that an
unfair immigration-related employment practice has occurred or is
occurring may file a charge respecting such practice or violation
with the Special Counsel (appointed under subsection (c) of this
section). Charges shall be in writing under oath or affirmation
and shall contain such information as the Attorney General
requires. The Special Counsel by certified mail shall serve a
notice of the charge (including the date, place, and
circumstances of the alleged unfair immigration-related
employment practice) on the person or entity involved within 10
days.
(2) No overlap with EEOC complaints
No charge may be filed respecting an unfair immigration-related
employment practice described in subsection (a)(1)(A) of this
section if a charge with respect to that practice based on the
same set of facts has been filed with the Equal Employment
Opportunity Commission under title VII of the Civil Rights Act of
1964 [42 U.S.C. 2000e et seq.], unless the charge is dismissed as
being outside the scope of such title. No charge respecting an
employment practice may be filed with the Equal Employment
Opportunity Commission under such title if a charge with respect
to such practice based on the same set of facts has been filed
under this subsection, unless the charge is dismissed under this
section as being outside the scope of this section.
(c) Special Counsel
(1) Appointment
The President shall appoint, by and with the advice and consent
of the Senate, a Special Counsel for Immigration-Related Unfair
Employment Practices (hereinafter in this section referred to as
the "Special Counsel") within the Department of Justice to serve
for a term of four years. In the case of a vacancy in the office
of the Special Counsel the President may designate the officer or
employee who shall act as Special Counsel during such vacancy.
(2) Duties
The Special Counsel shall be responsible for investigation of
charges and issuance of complaints under this section and in
respect of the prosecution of all such complaints before
administrative law judges and the exercise of certain functions
under subsection (j)(1) of this section.
(3) Compensation
The Special Counsel is entitled to receive compensation at a
rate not to exceed the rate now or hereafter provided for grade
GS-17 of the General Schedule, under section 5332 of title 5.
(4) Regional offices
The Special Counsel, in accordance with regulations of the
Attorney General, shall establish such regional offices as may be
necessary to carry out his duties.
(d) Investigation of charges
(1) By Special Counsel
The Special Counsel shall investigate each charge received and,
within 120 days of the date of the receipt of the charge,
determine whether or not there is reasonable cause to believe
that the charge is true and whether or not to bring a complaint
with respect to the charge before an administrative law judge.
The Special Counsel may, on his own initiative, conduct
investigations respecting unfair immigration-related employment
practices and, based on such an investigation and subject to
paragraph (3), file a complaint before such a judge.
(2) Private actions
If the Special Counsel, after receiving such a charge
respecting an unfair immigration-related employment practice
which alleges knowing and intentional discriminatory activity or
a pattern or practice of discriminatory activity, has not filed a
complaint before an administrative law judge with respect to such
charge within such 120-day period, the Special Counsel shall
notify the person making the charge of the determination not to
file such a complaint during such period and the person making
the charge may (subject to paragraph (3)) file a complaint
directly before such a judge within 90 days after the date of
receipt of the notice. The Special Counsel's failure to file such
a complaint within such 120-day period shall not affect the right
of the Special Counsel to investigate the charge or to bring a
complaint before an administrative law judge during such 90-day
period.
(3) Time limitations on complaints
No complaint may be filed respecting any unfair
immigration-related employment practice occurring more than 180
days prior to the date of the filing of the charge with the
Special Counsel. This subparagraph shall not prevent the
subsequent amending of a charge or complaint under subsection
(e)(1) of this section.
(e) Hearings
(1) Notice
Whenever a complaint is made that a person or entity has
engaged in or is engaging in any such unfair immigration-related
employment practice, an administrative law judge shall have power
to issue and cause to be served upon such person or entity a copy
of the complaint and a notice of hearing before the judge at a
place therein fixed, not less than five days after the serving of
the complaint. Any such complaint may be amended by the judge
conducting the hearing, upon the motion of the party filing the
complaint, in the judge's discretion at any time prior to the
issuance of an order based thereon. The person or entity so
complained of shall have the right to file an answer to the
original or amended complaint and to appear in person or
otherwise and give testimony at the place and time fixed in the
complaint.
(2) Judges hearing cases
Hearings on complaints under this subsection shall be
considered before administrative law judges who are specially
designated by the Attorney General as having special training
respecting employment discrimination and, to the extent
practicable, before such judges who only consider cases under
this section.
(3) Complainant as party
Any person filing a charge with the Special Counsel respecting
an unfair immigration-related employment practice shall be
considered a party to any complaint before an administrative law
judge respecting such practice and any subsequent appeal
respecting that complaint. In the discretion of the judge
conducting the hearing, any other person may be allowed to
intervene in the proceeding and to present testimony.
(f) Testimony and authority of hearing officers
(1) Testimony
The testimony taken by the administrative law judge shall be
reduced to writing. Thereafter, the judge, in his discretion,
upon notice may provide for the taking of further testimony or
hear argument.
(2) Authority of administrative law judges
In conducting investigations and hearings under this subsection
(!1) and in accordance with regulations of the Attorney General,
the Special Counsel and administrative law judges shall have
reasonable access to examine evidence of any person or entity
being investigated. The administrative law judges by subpoena may
compel the attendance of witnesses and the production of evidence
at any designated place or hearing. In case of contumacy or
refusal to obey a subpoena lawfully issued under this paragraph
and upon application of the administrative law judge, an
appropriate district court of the United States may issue an
order requiring compliance with such subpoena and any failure to
obey such order may be punished by such court as a contempt
thereof.
(g) Determinations
(1) Order
The administrative law judge shall issue and cause to be served
on the parties to the proceeding an order, which shall be final
unless appealed as provided under subsection (i) of this section.
(2) Orders finding violations
(A) In general
If, upon the preponderance of the evidence, an administrative
law judge determines that any person or entity named in the
complaint has engaged in or is engaging in any such unfair
immigration-related employment practice, then the judge shall
state his findings of fact and shall issue and cause to be
served on such person or entity an order which requires such
person or entity to cease and desist from such unfair
immigration-related employment practice.
(B) Contents of order
Such an order also may require the person or entity -
(i) to comply with the requirements of section 1324a(b) of
this title with respect to individuals hired (or recruited or
referred for employment for a fee) during a period of up to
three years;
(ii) to retain for the period referred to in clause (i) and
only for purposes consistent with section 1324a(b)(5) of this
title, the name and address of each individual who applies,
in person or in writing, for hiring for an existing position,
or for recruiting or referring for a fee, for employment in
the United States;
(iii) to hire individuals directly and adversely affected,
with or without back pay;
(iv)(I) except as provided in subclauses (II) through (IV),
to pay a civil penalty of not less than $250 and not more
than $2,000 for each individual discriminated against,
(II) except as provided in subclauses (III) and (IV), in
the case of a person or entity previously subject to a single
order under this paragraph, to pay a civil penalty of not
less than $2,000 and not more than $5,000 for each individual
discriminated against,
(III) except as provided in subclause (IV), in the case of
a person or entity previously subject to more than one order
under this paragraph, to pay a civil penalty of not less than
$3,000 and not more than $10,000 for each individual
discriminated against, and
(IV) in the case of an unfair immigration-related
employment practice described in subsection (a)(6) of this
section, to pay a civil penalty of not less than $100 and not
more than $1,000 for each individual discriminated against;
(v) to post notices to employees about their rights under
this section and employers' obligations under section 1324a
of this title;
(vi) to educate all personnel involved in hiring and
complying with this section or section 1324a of this title
about the requirements of this section or such section;
(vii) to remove (in an appropriate case) a false
performance review or false warning from an employee's
personnel file; and
(viii) to lift (in an appropriate case) any restrictions on
an employee's assignments, work shifts, or movements.
(C) Limitation on back pay remedy
In providing a remedy under subparagraph (B)(iii), back pay
liability shall not accrue from a date more than two years
prior to the date of the filing of a charge with the Special
Counsel. Interim earnings or amounts earnable with reasonable
diligence by the individual or individuals discriminated
against shall operate to reduce the back pay otherwise
allowable under such paragraph. No order shall require the
hiring of an individual as an employee or the payment to an
individual of any back pay, if the individual was refused
employment for any reason other than discrimination on account
of national origin or citizenship status.
(D) Treatment of distinct entities
In applying this subsection in the case of a person or entity
composed of distinct, physically separate subdivisions each of
which provides separately for the hiring, recruiting, or
referring for employment, without reference to the practices
of, and not under the control of or common control with,
another subdivision, each such subdivision shall be considered
a separate person or entity.
(3) Orders not finding violations
If upon the preponderance of the evidence an administrative law
judge determines that the person or entity named in the complaint
has not engaged and is not engaging in any such unfair
immigration-related employment practice, then the judge shall
state his findings of fact and shall issue an order dismissing
the complaint.
(h) Awarding of attorney's fees
In any complaint respecting an unfair immigration-related
employment practice, an administrative law judge, in the judge's
discretion, may allow a prevailing party, other than the United
States, a reasonable attorney's fee, if the losing party's argument
is without reasonable foundation in law and fact.
(i) Review of final orders
(1) In general
Not later than 60 days after the entry of such final order, any
person aggrieved by such final order may seek a review of such
order in the United States court of appeals for the circuit in
which the violation is alleged to have occurred or in which the
employer resides or transacts business.
(2) Further review
Upon the filing of the record with the court, the jurisdiction
of the court shall be exclusive and its judgment shall be final,
except that the same shall be subject to review by the Supreme
Court of the United States upon writ of certiorari or
certification as provided in section 1254 of title 28.
(j) Court enforcement of administrative orders
(1) In general
If an order of the agency is not appealed under subsection
(i)(1) of this section, the Special Counsel (or, if the Special
Counsel fails to act, the person filing the charge) may petition
the United States district court for the district in which a
violation of the order is alleged to have occurred, or in which
the respondent resides or transacts business, for the enforcement
of the order of the administrative law judge, by filing in such
court a written petition praying that such order be enforced.
(2) Court enforcement order
Upon the filing of such petition, the court shall have
jurisdiction to make and enter a decree enforcing the order of
the administrative law judge. In such a proceeding, the order of
the administrative law judge shall not be subject to review.
(3) Enforcement decree in original review
If, upon appeal of an order under subsection (i)(1) of this
section, the United States court of appeals does not reverse such
order, such court shall have the jurisdiction to make and enter a
decree enforcing the order of the administrative law judge.
(4) Awarding of attorneys' fees
In any judicial proceeding under subsection (i) of this section
or this subsection, the court, in its discretion, may allow a
prevailing party, other than the United States, a reasonable
attorney's fee as part of costs but only if the losing party's
argument is without reasonable foundation in law and fact.
(k) Termination dates
(1) This section shall not apply to discrimination in hiring,
recruiting, or referring, or discharging of individuals occurring
after the date of any termination of the provisions of section
1324a of this title, under subsection (l) (!2) of that section.
(2) The provisions of this section shall terminate 30 calendar
days after receipt of the last report required to be transmitted
under section 1324a(j) (!2) of this title if -
(A) the Comptroller General determines, and so reports in such
report that -
(i) no significant discrimination has resulted, against
citizens or nationals of the United States or against any
eligible workers seeking employment, from the implementation of
section 1324a of this title, or
(ii) such section has created an unreasonable burden on
employers hiring such workers; and
(B) there has been enacted, within such period of 30 calendar
days, a joint resolution stating in substance that the Congress
approves the findings of the Comptroller General contained in
such report.
The provisions of subsections (m) and (n) (!2) of section 1324a of
this title shall apply to any joint resolution under subparagraph
(B) in the same manner as they apply to a joint resolution under
subsection (l) (!2) of such section.
(l) Dissemination of information concerning anti-discrimination
provisions
(1) Not later than 3 months after November 29, 1990, the Special
Counsel, in cooperation with the chairman of the Equal Employment
Opportunity Commission, the Secretary of Labor, and the
Administrator of the Small Business Administration, shall conduct a
campaign to disseminate information respecting the rights and
remedies prescribed under this section and under title VII of the
Civil Rights Act of 1964 [42 U.S.C. 2000e et seq.] in connection
with unfair immigration-related employment practices. Such campaign
shall be aimed at increasing the knowledge of employers, employees,
and the general public concerning employer and employee rights,
responsibilities, and remedies under this section and such title.
(2) In order to carry out the campaign under this subsection, the
Special Counsel -
(A) may, to the extent deemed appropriate and subject to the
availability of appropriations, contract with public and private
organizations for outreach activities under the campaign, and
(B) shall consult with the Secretary of Labor, the chairman of
the Equal Employment Opportunity Commission, and the heads of
such other agencies as may be appropriate.
(3) There are authorized to be appropriated to carry out this
subsection $10,000,000 for each fiscal year (beginning with fiscal
year 1991).
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