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Story highlights

Dan Werner: The guest worker program is flawed to the core

If a U.S. business uses a recruiter abroad to hire guest workers, it can skirt anti-discrimination laws with impunity, says Werner

Editor’s Note: Dan Werner serves as senior supervising attorney for the Southern Poverty Law Center’s Immigrant Justice Project, which combats workplace exploitation and other human rights abuses of immigrants. He is an expert on human trafficking law and the co-author of “A Guide to Civil Litigation on Behalf of Victims of Human Trafficking.” The opinions expressed in this commentary are his.

(CNN) —  

When hiring, resorts such as Donald Trump’s Mar-a-Lago have found a way to discriminate against women, older workers, people with disabilities and, more broadly, people who don’t have the “look” they want. As the law stands, they’ll probably get away with it.

CNN recently reported that for resorts like Mar-a-Lago, “Trump seems to like his overseas workers to be young and attractive, and with strong specific accents from Romania and South Africa.”

Dan Werner
Courtesy of Dan Werner
Dan Werner

Aaron Janus, a former executive chef at Mar-a-Lago in Palm Beach, Florida, told the network, “They cherry-picked some pretty people.”

In the United States, considering someone “pretty” in most cases is not an acceptable standard for hiring if it means not hiring an equally qualified person with a disability, an older worker, or someone of a race, religion or gender that may not appeal to the clientele.

But if a US business uses a recruiter abroad to hire guest workers, it can skirt anti-discrimination laws with impunity.

That is because potential workers who think they are victims of discrimination face a classic Catch-22. Courts have concluded that a foreign national abroad cannot file an anti-discrimination suit in the United States unless she was actually hired for the job and granted a visa. If she was not hired for discriminatory reasons, she never gets the authority to work in the United States. Therefore, courts say she is not “qualified” for the job, so the law offers no protections or remedies.

As a result, if resorts want to hire young, white women from Romania, as CNN reported was the case at Mar-a-Lago, they can. They can even tell other foreign applicants that they are not being hired because they are too old or too brown. If they did that here, they would be sued.

(All that said, discriminating against someone because he or she is not attractive in itself isn’t illegal. It becomes a problem when the employer’s view of who is attractive and who is not attractive is rooted in characteristics such as gender, race, age, disability or religion.)

Of course, our nation’s guest worker visa program is not an invention of exclusive resorts like Mar-a-Lago. Discrimination in hiring guest workers is pervasive across industries and regions, from landscapers in Mississippi to carnival workers in California to stable attendants in New York. These workers’ employers would likely argue that they saw an opportunity and took advantage of it (many also argue that US workers are not willing to take these jobs, which is a well-documented fallacy).

Therein lies the problem. The guest worker program is flawed to the core.

The H-2B program was designed to allow employers to hire low-skill, nonagricultural workers abroad for temporary or seasonal jobs that cannot be filled with domestic workers.

Temporary means just that. At the end of a guest worker’s contract, she must return home. There is no path to citizenship. The name of the employer is stamped on the visa, obligating the employee to work only for that employer. If they leave before the end of their work contract – even if trying to escape mistreatment – the law offers them only a few days to exit the United States. Otherwise they risk deportation and a long-term bar to obtaining another visa.

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Making guest workers even more vulnerable is a completely unregulated system in which many pay exorbitant sums to unscrupulous recruiters for the opportunity to come to America. It’s easy to see how this inherently coercive visa program is rife with abuse ranging from wage theft to human trafficking.

To workers, this may seem like a rigged system. Yet, an exploitable workforce that can be hired without regard for anti-discrimination laws is exactly what some companies want.

A coalition of businesses employing H-2B guest workers has been lobbying to expand and “streamline” (a euphemism for scaling back protections for guest workers and US workers seeking the same jobs) the program that currently limits visas to 66,000 per year.

They have support from members of Congress on both sides of the aisle. They include outgoing Democratic Sen. Barbara Mikulski of Maryland, where the crab industry employs hundreds of H-2B guest workers.

Michael Bloomberg’s Partnership for a New American Economy, a business coalition that promotes immigration reform, has thrown its weight behind these efforts. Even so, Bloomberg claimed that Donald Trump “games the US visa system so he can hire temporary foreign workers at low wages.”

If these businesses and their political allies have their way, the H-2B guest worker model may represent the future of low-wage work in America. Hard-fought worker protections, including laws prohibiting employment discrimination, would be eviscerated.