New Supreme Court Rulings on Immigration and Discrimination Summon Attention

Employers that hire foreign workers may have a hard time filling certain job slots soon, if recent action by the Trump Administration survives legal scrutiny. The affected foreign workers are those who have been able to come to the United States using several categories of work visas. In late June, President Trump signed an executive order suspending applications for:

• H-1B visas for professionals,
• H-2G for temporary, non-agricultural employees,
• L-1A and L-1B visas for intracompany transfers, and
• Certain J-1 exchange visitors (including interns).

The suspension affects foreign nationals outside the United States who are in the process of seeking those visas or were planning to start the process. It’s scheduled to end on Dec. 31 but could be extended. Foreign citizens overseas who had already obtained those visas prior to the executive order that took effect June 24 aren’t impacted (whether they’re still abroad or currently in the United States).

Visa Suspension Exemptions

Exceptions will be made for foreign nationals who qualify for an as-yet undefined “national interest” exemption. The executive order did establish several exemption categories, however. Those include people who are:

• Necessary to facilitate the immediate and continued economic recovery of the United States,
• Involved in the provision of medical care to hospitalized victims of COVID-19,
• Involved with the provision of COVID-19 research at U.S. facilities, or
• Critical to the defense, law enforcement, diplomacy or national security of the United States.

The goal of the order is to expand employment opportunities for U.S. citizens. It’s anticipated that employers seeking certain kinds of technical workers may circumvent the order by retaining needed talent via remote working arrangements.

DACA Basics

Meanwhile, a U.S. Supreme Court ruling involving a program of deferred action for childhood arrivals (DACA) recipients, also known as “dreamers,” gave at least a temporary reprieve to those individuals. These are primarily children of undocumented immigrants from Mexico who were under age 16 when they arrived in the United States and have lived here since prior to June 15, 2007. DACA status protects nearly 650,000 people with an average age of 26, according to the U.S. Citizenship and Immigration Service.

Under the DACA program, established in 2012, covered individuals need to reapply for permission to remain in the U.S. every two years. When enacted, the policy’s goal was to buy time for these individuals pending a permanent resolution by Congress of how their immigration status should be handled. In 2017, President Trump suspended the DACA program, and that decision had been challenged in federal courts.

The Supreme Court ruled that when it sought to end the DACA program, the Trump Administration failed to meet the requirements of the Administrative Procedures Act, a law that requires detailed justification for such actions. In principle, the Trump Administration could renew its effort to end the DACA program by fleshing out the documentation of its rationale for ending the program. However, it’s not expected that the matter could be resolved prior to the presidential election in November.

What the DACA Ruling Could Mean for You

The upshot for employers of DACA status recipients is that those employees are less likely to face deportation in the short run. When they join a new employer, DACA recipients have the same obligation to complete an I-9 employment eligibility verification as everyone else.

That means, assuming the employee provides valid documentation, employers will know of an employee’s DACA status and keep tabs on when the DACA recipient’s protected status needs to be renewed. But given the possibility of a restoration of the decision to end the DACA program down the road, some employers might encourage DACA recipients to seek reauthorization of their status well in advance of the expiration of their current authorization period.

Prior to the Supreme Court’s ruling, if an employee’s authorization to live in the U.S. has expired, employment must be terminated. However, employers must take care to avoid treating suspected DACA status employees differently than other employees by requiring them to furnish documents not on the I-9 form’s “acceptable list.”

Gay, Transgender Discrimination Ruling

The Supreme Court’s high-profile ruling in Bostock v. Clayton County involving workplace protections from employment discrimination against gay and transgender employees might have broader implications than the specifics of the cases underlying the ruling. Three cases were folded into the opinion; each involved the termination of either a gay or transgender employee.

The Court, by a 6-3 vote, held that the firings violated Title VII of the Civil Rights Act’s ban on employment discrimination “because … of sex” language. Originally that provision of the law was interpreted only as banning discrimination “against women because they are women and men because they are men.” Over time the courts attached a broader meaning to that key phrase, while it also ruled in opposition of discrimination against homosexuals in other contexts, including marriage.

The Court explained its logic this way. Consider the case of two employees. One is a man attracted to men, and the second employee is a woman attracted to men. Both employees are attracted to men. However, the first employee is fired for no reason other than his preference for men, but the second employee who exhibits the same behavior is not. That constitutes discrimination “because of sex,” the Court concluded.

For employers in the 23 states and hundreds of cities and counties that already ban employment discrimination against gay and transgender people, the Bostock v. Clayton County ruling may be a non-event. Nevertheless, employers in all states may want to review their policies, employee handbooks and manager training programs to ensure consistency with this opinion. Also, it’s possible that the ruling will ultimately have spillover impact in other employment-related areas not covered by Title VII, including employee benefits.

Final Thoughts

Sooner or later, most employers will encounter questions about various types of discrimination. Some areas are clear and some are evolving. Don’t take chances. If you’re not certain, consult your employment attorney for details and guidance.