Popular discourse in the U.S. immigration debate often simply asserts that immigrants take jobs that native workers do not want. Though perhaps politically salient, such slogans overlook the complex interaction between employer preferences, immigration, and legal protections. Building on sociological research, this Comment explores the reality that many employers actually discriminate against U.S. workers in favor of immigrants, who, because of their vulnerable legal status and different social institutions, may be more susceptible to exploitation. While preferences based on immigration status itself—even distinct from race or national origin—are a significant basis for discrimination, there has been very little scholarship on this topic, especially from the perspective of U.S. workers facing discrimination.
Curbing this discrimination against U.S. workers is important for both workers’ rights and immigrants’ rights advocates. Those U.S. workers facing discrimination are often at the bottom end of the pay scale and are most susceptible to living in poverty. Although preferences for vulnerable immigrants may seem to provide opportunities to people from developing countries, they also can harm those same workers because the jobs provided come laced with labor violations and poor workplace conditions that may make it hard for employees to improve their situations. Thwarting this discrimination also can promote diverse workplaces, which are necessary not only to limit exploitation of all low-wage workers, but also to foster ties between different groups and strengthen democracy.
This Comment analyzes what remedies U.S. workers have for discrimination based on immigration status through evaluating three antidiscrimination statutes—the Immigration Reform and Control Act’s (IRCA) antidis¬crimination provision, Title VII, and 42 U.S.C. § 1981. Few cases have successfully defended U.S. workers from preferences for vulnerable immigrants. Though those successes have mainly been administrative challenges under IRCA, a comparative analysis demonstrates that Title VII or § 1981 may be better legal tools to remedy employment discrimination. Moreover, this Comment discusses ways to fight U.S. worker discrimination without harming vulnerable immigrants or creating a wedge between these sectors of the population. Bringing immigrant labor abuse claims and U.S. worker antidiscrimination lawsuits simultaneously is one approach for how to achieve this goal.