applying to employers, but Title VII only
prohibits national origin—not citizenship—discrimination.
“National origin” means coming from
a particular place or having particular
ancestors, or having a particular accent
or physical or cultural characteristic. It is
not the same thing as citizenship; the U.S.
Supreme Court said so in 1973 in
Espinoza v. Farah Mfg. Co. Inc.
Espinoza involved a permanent resident alien from Mexico who was denied
employment pursuant to the employer’s policy of hiring only U.S. citizens.
She sued, but because citizenship is not
expressly mentioned in the text of Title
VII as a characteristic protected by the
statute, the Supreme Court held that a
refusal to hire non-U.S. citizens was not
prohibited by Title VII.
Although not the actual ruling of the
case, the Espinoza court recognized that if
one could prove that a citizenship require-
ment had the “purpose or effect” of dis-
criminating against an individual on the
basis of national origin, the citizenship
requirement could be deemed tantamount
to national origin discrimination. The
“[A] citizenship requirement might
be but one part of a wider scheme of
unlawful national origin discrimina-
tion…[A]n employer might use a
citizenship test as a pretext to disguise
what is in fact national origin discrimi-
nation. Certainly Title VII prohibits
discrimination on the basis of citizen-
ship whenever it has the purpose or
effect of discriminating on the basis
of national origin. The Act proscribes
not only overt discrimination but also
practices that are fair in form, but dis-
criminatory in operation.”
Although the court went on to find no
evidence in the case before proving that
the citizen-only policy had the purpose or
effect of discriminating against persons of
Mexican national origin, which meant that
Espinoza lost her case, the quote above
opened the door for future lawsuits under
Because citizen-only requirements can be
deemed tantamount to national origin discrimination, staffing professionals should be
cautious about implementing citizen-only
rules. This advice is particularly important given that a second federal law—the
Immigration Reform and Control Act of
1986—expressly prohibits citizenship discrimination in employment.
Accounting for IRCA
IRCA established in 1986 a national
system designed to control employment of
unauthorized and undocumented workers.
The statute requires newly hired employees to present certain documents to their
employer to establish their identity and
their ability to work lawfully.
Recognizing that IRCA’s requirements
could have the unintended effect of
causing employers to simply decline to hire
“foreign” applicants, Congress included in
IRCA a prohibition against citizenship
and national origin discrimination. IRCA’s
protections apply to everyone lawfully
able to work in the U.S., except for those
working under H-1B visas and some other
work authorizations. Thus, today, a policy
like that in Espinoza would likely violate
IRCA’s antidiscrimination provisions.
Analyzing the Exceptions
There are “national security” exceptions
to Title VII and IRCA. (IRCA states that
discrimination permitted under Title VII’s
national security exception also is permis-
sible under IRCA.) Section 703(g) of Title
VII shields an employer from claims of dis-
crimination if: ( 1) a U.S. citizenship require-
ment is embedded in the duties of the job
or in a site access program at which a job is
to be performed; and ( 2) it is imposed “in
the interest of national security,” ( 3) under “a
security program,” ( 4) with origins in a U.S.
statute or a presidential executive order.
This four-pronged test can seem con-
fusing, but an example of how it works is
illustrated by the Fifth Circuit Court of
Appeals’ 2013 decision in Toy v. Holder.
Toy involved access to a U.S. Federal
Bureau of Investigations building by a
contract worker employed by a staffing
company. After the FBI revoked Toy’s
access to the building, because it con-
cluded that she had engaged in security
breaches, the staffing company terminated
her employment. She sued the FBI, claim-
ing sex discrimination under Title VII.
The Fifth Circuit framed the issue like
this: Was access to the FBI’s premises,
where the job was to be performed (prong
1), part of a requirement imposed in the
interest of national security (prong 2),
under a security program (prong 3), in
effect pursuant to or administered under a
presidential executive order (prong 4)?
The Toy court found that “security
program” was to be interpreted broadly
to mean any federal regulations or an
executive order relating to natural security.
The Toy court found that the FBI access
program was grounded in Executive Order
12829, which had been established to
regulate nongovernment workers’ access to
government buildings. Because the FBI’s
decision to revoke Toy’s access was made
under this executive order, which was
designed for security reasons, the court
found the national-security exception
applicable. Consequently, judicial review
of Toy’s decision was barred.
Requiring Security Clearances
There are at least two post-Toy sce-
narios where screening applicants on the
When placing candidates with clients, citizenship requirements are
sometimes permissible, sometimes unlawful, and always complicated.
Before saying “yes” to a client, consult with your legal department.