Immigrant Rights

Immigrant Rights

As an undocumented immigrant, do I have the same rights as other employees not to be discriminated against at work for being LGBT or HIV-positive?

Immigrants—whether documented or undocumented—have the same rights to fair treatment at work as other employees, as well as the right to protest, report and fight workplace discrimination. The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that investigates workplace violations, is not allowed to consider citizenship status when investigating and taking action against employers who discriminate. And federal immigration officials have voiced support for that policy.

As an undocumented immigrant, do I need to worry that reporting anti-LGBT or anti-HIV discrimination will get me deported?

Undocumented immigrants who complain about discrimination are always at risk that their employers will retaliate by reporting them to the federal U.S. Immigration and Customs Enforcement (ICE). Although it is illegal for employers to retaliate against workers who report discrimination—whatever their immigration status—it is a risk because proving retaliation can be difficult. And it is an especially great risk for undocumented workers because ICE may deport you in any case.

In addition, if you used false information to apply for your job, you could be subject to criminal charges, fined or prevented from returning to the United States in the future.

Who should I talk to first if I am an undocumented immigrant and want to report anti-LGBT or anti-HIV discrimination at my workplace?

It’s a good idea to consult immigration experts or an attorney before officially protesting discrimination at your workplace. (For referrals, one place to start is the Legal Aid Society). This is for your safety but also so that you can find out about legal issues and arguments appropriate to your situation. For instance, if your employer is investigated for anti-LGBT or anti-HIV workplace discrimination—whether based on your complaints or the complaints of other workers—you might be eligible for a so-called U visa. This is a special status that can be awarded to crime victims who help law enforcement investigate crimes.

You should also be aware that the Equal Employment Opportunity Commission (EEOC) allows charges to be filed by others, such as an LGBT-rights group or immigrant-rights group, on your behalf. Consult Volume 1, Section 2 of the EEOC Compliance Manual for details (available on subscription-only and professional sites such as Westlaw). 

If I am reporting anti-LGBT or anti-HIV discrimination, must I disclose to my employer that I am LGBT or HIV-positive?

No, you are not required to inform an employer of the fact that you are LGBT or HIV-positive—whatever your immigration status and whether or not you are reporting discrimination.

However, if you are requesting a reasonable accommodation, you may eventually need to disclose your status.

FOR MORE INFORMATION: Contact our Help Desk if you feel you have experienced discrimination.