As anti-immigrant sentiment rises, especially during an election year,
we tend to see more national origin discrimination cases. A recent case
examined the actions of the Department of Homeland Security (DHS) in denying
a promotion to an employee who is a Muslim born in Algeria in favor of
three white employees. In
Ahmed v. Johnson, the U.S. Court of Appeals for the First Circuit determined that evidence
depicting a poor working environment with few promotions for racial minorities
could person a reasonable jury to find that the DHS's explanation
for passing over the Muslim man was "pretext" for unlawful bias.
Tahar Ahmed had worked as an Immigration Enforcement Agent for U.S. Immigration
and Customs Enforcement ("ICE") since 2003, and has been assigned
throughout that period to the Criminal Alien Program ("CAP")
in the Boston Field Office. Employees who work in the CAP, one of several
units within ICE's Detention and Removal Operations, investigate the
alienage and deportability of individuals detected through the criminal
justice system. From the perspective of co-workers and supervisors, Ahmed
has been an exemplary employee.
Ahmed applied for a promotion and took a qualification exam. He was denied
the promotion. Evidence revealed that Ahmed had scored higher on the qualification
exam than any of the selected candidates, and despite DHS's claims
that the other candidates were chosen based on their superior work experience
and training, upon closer review the court found that DHS failed to conduct
interviews or look at the other candidate's personnel record, facts
which undermine the agency's stated rationale. As a result the court
said that a jury could conclude, "that the officials falsely claimed
to have sought the best candidates for the promotion."
The court applied the standard test for national origin discrimination:
To establish a prima facie case of discrimination, Ahmed needed to show
that (1) he is a member of a protected class, (2) he was qualified for
the open position of Deportation Officer, (3) he was denied the position,
and (4) the position was given to someone with similar or inferior qualifications.
To defend against national origin discrimination claims, employers often
try to produce non-discriminatory reasons why the employee was not promoted.
However, whether these non-discriminatory reasons were valid, or just
a pre-text for unlawful bias, is a matter for a jury to decide.
If you have been discriminated against due to your national origin or
religion, contact the lawyers at Schwartz and Perry LLP.