Foreign-born worker sues? Know difference between national origin and immigration status — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Foreign-born worker sues? Know difference between national origin and immigration status

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in Discrimination and Harassment,Human Resources

While it is illegal to discriminate against an individual based on his or her national origin, that doesn’t mean that discrimination against someone based on her immigration status is forbidden. That’s because immigration status isn’t tied to a particular national origin.

Recent case: Katia Guimaraes is a native of Brazil and holds dual Brazilian and Canadian citizenship. She speaks English with an accent.

Guimaraes worked for the Albert­son’s grocery chain (which merged with SuperValu) under an H-1B visa, an employer-sponsored non-immigration visa allowing temporary residence for specialty workers. H-1B visas must be renewed every three years.

When Guimaraes last renewed her visa, SuperValu became the sponsor and posted her job internally as well as externally. It interviewed U.S. residents for the position and certified that none was more qualified than Guimaraes. The company also sponsored her application for a “green card” so she could become a legal permanent resident.

Then Guimaraes got a new boss. Almost immediately, the two clashed over management style and work­­load. After a reorganization, Guimaraes ended up with about 20% more work than before. She had trouble keeping up. Her supervisor placed her on a performance improvement plan and supposedly told another employee that she was really trying to get rid of Guimaraes before she got a green card.

Guimaraes was terminated during a reduction in force, in part because she was the only employee on a performance improvement plan.

She sued, alleging national origin discrimination. She cited her former supervisor’s alleged attempt to fire her before she got permanent residence.

The court tossed out her case. It reasoned that if Guimaraes was ­­discriminated against, she wasn’t targeted because she was from Brazil or Canada. Instead, the discrimination had to be based on immigration status, which the court said isn’t a protected classification covered by Title VII or the Minnesota Human Rights Act.

In addition, it said Guimaraes’ prior good performance evaluations didn’t matter in this case. She had argued that the charges in the performance improvement plan were trumped up in order to get rid of her. She pointed out that her prior supervisor had certified to the immigration authorities that she was the best-qualified candidate and that the company could not find any better qualified Americans or legal residents to perform her job.

But, the court pointed out, that was in the past. Her job duties had changed, as had her supervisor. That her new boss believed she wasn’t doing as good a job as her old one didn’t automatically mean that the new boss was biased. (Guimaraes v. SuperValu, No. 11-1046, 8th Cir., 2012)

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