Vanderbilt Law Review

First Page



On November 6, 1986, President Reagan signed into law the Immigration Reform and Control Act (IRCA), proclaiming it to be the most difficult legislative undertaking in the previous three Congresses. The Act's controversial centerpiece provides for sanctions against employers who knowingly hire, recruit, or refer for a fee undocumented aliens. While these sanctions were heralded as the most comprehensive reform in immigration law in over thirty years, opposition to them in Congress and among civil rights organizations was strong. These groups feared that employers seeking to avoid sanctions would discriminate in employment against Hispanics, Asians, and other ethnically or racially identifiable minorities, whether or not these individuals were United States citizens or nationals, properly admitted aliens, or undocumented workers awaiting permanent residency under the IRCA's amnesty provisions." In order to assuage this fear and directly confront the threat of discrimination, Congress included within the Act section 274B,' which protects employees against employers who discriminate on the basis of national origin or alienage. This section commonly is referred to as the Act's anti-discrimination provision.

Each month dozens of complaints alleging violations of section 274B are filed. The status of the overwhelming majority of these complaints is uncertain. Most of the uncertainty concerns the standard of proof necessary to establish a violation of the anti-discrimination provision. Upon signing the Act into law, President Reagan issued a statement declaring that Congress intended that only intentional discrimination would constitute a violation of section 274B. The provision's author, Representative Barney Frank, immediately protested,calling the President's interpretation "intellectually dishonest, mean spirited" and inaccurate." According to Representative Frank, Congress intended that both intentional and unintentional discrimination would constitute a violation of section 274B. In the midst of this continuing controversy," others questioned the necessity of section 274B, convinced that existing law was adequate to protect aliens threatened with employment discrimination. These individuals believe that section 274B is burdensome and, therefore, call for its repeal.

The status of complaints filed under section 274B will depend in large measure on the substantive theories of anti-discrimination law that the plaintiff is required to satisfy." The objective of this Note, there-fore, is to determine the intended theory of liability and corresponding standard of proof required to show a violation of section 274B. President Reagan determined that the theory is disparate treatment, while the bill's author determined that the theory is disparate impact."

In order to assess the relative merits of each position, this Note will analyze section 274B in the context of its legislative history along with its relationship to other anti-discrimination laws. More specifically, Part II describes the coverage of section 274B. Part III discusses the frame-work of Title VII, section 703(a), of the Civil Rights Act of 1964 (TitleVII),8 and Title 42, section 1981, of the United States Code. Title VII is examined because it provides the theoretical model on which section 274B is based. Section 1981 is examined because it is possible that it renders section 274B redundant by protecting those individuals already adequately covered by section 274B. Part IV extends the discussion of Title VII by considering its various theories of liability. Unlike most statutes, Title VII permits plaintiffs to proceed essentially under one of three theories--each theory containing a different burden of proof standard. These differing standards turn on whether the plaintiff is required to prove discriminatory intent, or simply the existence of a discriminatory impact from an allegedly nondiscriminatory practice.Part V compares the advantages and disadvantages of requiring a plain-tiff to prove either discriminatory intent or discriminatory impact. Part VI reviews the President's position that only intentional discrimination is prohibited by section 274B. Following this discussion, Part VII considers the legislative history of the Act's anti-discrimination provision.Part VII asserts that the President's reading of the provision is misguided and not anchored in the Act's legislative history. This Note concludes in Part VIII with a brief consideration of the future of litigation under section 274B.