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Proceed with Caution When Employment Involves Immigration
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Discrimination in employment practices can land your business in
legal hot water, even if it's not intentional. What matters is the
result of certain actions. In broad terms, discrimination is
defined as changes in an employment practice such as recruitment,
hiring, job assignment or promotions that have the "purpose or
effect of denying employment or promotional opportunities to a
class of individuals," stated the U.S. Department of Justice (DOJ).
It's important to note that by this definition, the employer's
intention may be irrelevant if the "effect" is discrimination.
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Under Title VII of the Civil Rights Act, the U.S. Attorney
General has authority to bring suit against an employer "where
there is reason to believe that a pattern or practice of
discrimination exists." Authority to prosecute employers also
resides in anti-discrimination provisions of the Immigration and
Nationality Act (INA).
Here's a recent example to illustrate this concept. In June, the
DOJ settled an "immigration-related discrimination claim" against a
major national retailer. According to a DOJ announcement, the
retailer had "required a non-U.S. citizen, but not
similarly-situated U.S. citizens, to produce specific documentary
proof of her immigration status for the purpose of verifying her
employment eligibility." In other words, additional documentation
was required of this applicant compared to others.
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For More Information
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The DOJ encourages employers to visit its website at
www.justice.gov/cli/about/osc for more answers. Interested parties
can call the DOJ toll-free employer hotline at 1-800-255-8155.
The office also offers educational materials and free webinar
training to interested parties.
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Inconsistent Treatment
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In this case, the retailer asked the individual to produce her
green card, but it wasn't the employer's policy to ask every job
applicant to produce a green card or, for a U.S. Citizen, a similar
document such as a passport.
As part of the settlement, the retailer was ordered to pay
$3,661 in back wages to the complainant, and $153,932 "to
compensate other individuals who may have been harmed." The
retailer also agreed to have its employment practices supervised by
the DOJ for the next two years.
This type of complaint is handled by the DOJ's Office of Special
Counsel for Immigration-Related Employment Practices. Most of the
cases that are pursued arise from leads given by people possibly
through a designated link on the office website who believe an
employer has acted in a discriminatory fashion.
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Some of the categories of discrimination examined by this
division of DOJ include:
Citizenship or immigration status discrimination with respect to
hiring, firing and recruitment. U.S. citizens, recent permanent
residents, temporary residents, asylum seekers and refugees are
protected from citizenship status discrimination. One exception is
that permanent residents who don't apply for naturalization within
six months of eligibility aren't protected from citizenship status
discrimination.
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National origin discrimination. Employers may not treat
individuals differently because of their place of birth, country of
origin, ancestry, native language, accent or because they're
perceived as looking or sounding "foreign." All U.S. citizens,
lawful permanent residents and work-authorized individuals are
protected from national origin discrimination. Be aware that the
Equal Employment Opportunity Commission has jurisdiction over
employers with 15 or more employees.
Unfair documentary practices related to verifying the employment
eligibility of employees. Employers may not request more or
different documents than are required to verify employment
eligibility, reject reasonably genuine-looking documents, or
specify certain documents over others with the purpose or intent of
discriminating on the basis of citizenship status or national
origin. U.S. citizens and all work-authorized individuals are
protected from document abuse.
It's also illegal to retaliate against someone who claims to
have been discriminated against in any of these ways.
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Seeking Guidance
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Employers sometimes ask the DOJ for guidance in specific
situations in an effort to comply with the rules and avoid costly
violations. While the DOJ states that it can't provide advisory
opinions for these situations, it can offer general guidelines.
When it does, the responses are sometimes published as "technical
assistance letters.
Following are two cases where such letters were issued. They
illustrate the high degree of scrutiny the DOJ will give to
employer practices that may otherwise appear benign.
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1. Too Much Information?
In 2014, an electrical products company asked the DOJ for
guidance. The employer discovered that in some cases it had
accepted more documentation than necessary for Forms I-9. Focusing
on the term "accepted," the DOJ responded that it was unaware of
publicly available guidance relating to the acceptance of too many
documents. The DOJ added:
"An employer may violate the anti-discrimination provision of
the INA if it requests more or different documents or reject
sreasonably genuine-looking documents on the basis of citizenship
or immigration status or on the basis of national origin during the
Form I-9 process.
"If an employer requests more than one List A or a combination
of one List B document and one List C document, a violation of the
anti-discrimination provision of the INA will depend upon whether
the employer made any of those requests because of an employee's
citizenship or immigration status or because of an employee's
national origin."
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2. How Do We Respond to Fraud?
Earlier this year, the DOJ responded to an inquiry from a
laser-laminations company. The company was seeking guidance in the
proper handling of an unusual situation. A newly hired employee
presented documentation to support his Form I-9. The documentation
"appeared to be genuine." Later the employee presented new
documentation and told the employer the original documentation was
"not real." The company asked the DOJ if terminating this employee
would be deemed discriminatory.
In its "general guidance" reply, the DOJ cited the "Handbook for
Employers, Guidance for Completing Form I-9" (published by the U.S.
Citizenship and Immigration Services). "In that circumstance you
should complete a new Form I-9. Write the original hire date in
Section 2, and attach the new Form I-9 to the previously completed
Form 1-9 and include a written explanation. In cases where an
employee has worked for you using a false identity but is currently
work authorized, the I-9 rules do not require termination of
employment."
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However, with the following statement the DOJ left open the
possibility that terminating an employee under these circumstances
could still result in the employer being charged with
discrimination. "We note that an employer with a consistently
followed policy of terminating individuals for providing false
information during the hiring process may have a legitimate
nondiscriminatory reason for the termination. Accordingly, whether
or not this Office concludes that such a termination violates the
anti-discrimination provision depends upon the facts presented.
Bottom line: Employers need to be mindful that it's possible to
follow one federal law in a way that collides with other areas of
law, especially on the question of employment discrimination. And
those collisions could bring penalties, even though there was no
intent to discriminate.
The takeaway for employers is that any personnel decision
involving national origin or a potential citizenship/work
authorization status must be handled with extreme caution to ensure
there's no discrimination, intentional or otherwise. Generally, the
safest course of action is to consult an employment attorney or
your human resources adviser.
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