Ondina-Mendez v. Sugar Creek Packing Co.: OCAHO Rules Persons with TPS Cannot Bring Citizenship-Based Discrimination Claims...

IMMIGRANTS & EMPLOYMENT

IRCA Employment Verification and
Antidiscrimination Protections

ONDINA-MENDEZ V. SUGAR CREEK PACKING CO.: OCAHO RULES PERSONS WITH TPS CANNOT BRING CITIZENSHIP-BASED DISCRIMINATION CLAIMS UNDER IRCA; AGENCY HAS JURISDICTION OVER NATIONAL ORIGIN-BASED DOCUMENT ABUSE CLAIMS
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

An administrative law judge in the Office of the Chief Administrative Hearing Officer (OCAHO) has ruled that an individual who obtained work authorization through the temporary protected status (TPS) program is not a "qualified individual" under the Immigration Reform and Control Act's (IRCA's) antidiscrimination provisions (8 U.S.C. § 1324b) and is therefore not entitled to bring a claim for citizenship-status discrimination or for document abuse based on citizenship status. The ALJ also determined that a document abuse claim based on national origin "is not a form of national origin discrimination cognizable under Title VII," and OCAHO therefore has jurisdiction over those claims. ("Document abuse" refers to illegal and discriminatory actions or practices engaged in by employers with respect to documents presented by job applicants or employees.)

At the time she was hired, Gloria Ondina-Mendez, a Honduran national, presented an employment authorization document (EAD) that she had obtained through the TPS program. The EAD bore an expiration date of July 5, 2000. In May 2000, Congress extended the TPS program for another year, and the Immigration and Naturalization Service automatically extended the expiration date on EADs to Dec. 5, 2000. Around July 5, 2000, the employer asked Ondina-Mendez to provide proof that her EAD had been extended, and later asked that she provide the actual EAD. Ondina-Mendez provided the employer with a Kansas identification card and a receipt showing that she had applied for renewal of her EAD. Nevertheless, she was fired. She then filed a charge under the IRCA, claiming that she had been discriminated against based on her citizenship status and national origin, and that the employer had committed document abuse.

The ALJ found that he did not have jurisdiction over either the citizenship-based discrimination claim or the citizenship-based document abuse claim because only a lawful temporary resident (as defined by 8 U.S.C. sections 1160(a) or 1255(a)) qualifies as a "protected individual" under the IRCA. Moreover, the ALJ found he lacked jurisdiction because the TPS program is established under a different section of the Immigration and Nationality Act (8 U.S.C. § 12549(a)). Accordingly, he dismissed those claims.

The only claim that the judge addressed on the merits was the claim of document abuse based on national origin. That claim was based on the employer's request that Ondina-Mendez produce a specific document—an EAD—to satisfy the requirements relating to employment eligibility verification. The judge rejected the employer's contention that he lacked jurisdiction because Ondina-Mendez could have pursued that claim under Title VII, finding that "OCAHO has exclusive, original jurisdiction to adjudicate [an] alleged national origin-based violation of section 1324(a)(6)." He dismissed the claim, however, because Ondina-Mendez failed to show discriminatory purpose or intent on the part of the employer.

This represents the first case to interpret the IRCA's document abuse provision since amendments to it were enacted by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. Prior to the IIRIRA's amendments, claimants alleging document abuse did not have to show an employer's intent to discriminate to establish liability, and an employer's simple refusal to accept a facially valid document or insistence upon more or different documents than required to establish work eligibility violated the law. The IIRIRA changed that by specifically imposing an intent requirement. As the judge determined here, an employer will not be found liable for document abuse if it can show that the request for more or different documents, or the refusal to accept documents that appear genuine on their face, "was made for legitimate reasons not attributable to discrimination."

Ondina-Mendez v. Sugar Creek Packing Co., 9 OCAHO 1085 (Nov. 5, 2002).