U.S. Department of Justice Civil Rights Division

Office of Special Counsel for Immigration-Related

Unfair Employment Practices

U.S. Department of JusticeCivil Rights Division

http://upload.wikimedia.org/wikipedia/commons/2/26/US-DeptOfJustice-Seal.svg

• Investigates and prosecutes employment discrimination on the basis of citizenship status and national origin, which is prohibited by the anti-discrimination provision of the Immigration & Nationality Act. 8 U.S.C. § 1324b

• Prohibited unfair employment practices extend to discrimination in employment eligibility verification (I-9 and E-Verify)

• Provision was created by the Immigration Reform & Control Act (IRCA) in 1986

Employer Hotline: 1-800-255-8155Worker Hotline: 1-800-255-7688

Office of Special Counsel for Immigration Related Unfair Employment Practices: www.justice.gov/crt/osc

What Does OSC Do?



Presentation Overview

• Citizenship Status v. National Origin Discrimination

• Discrimination in Employment Eligibility Verification - Everify

• OSC Enforcement• OSC-State/Local FEPA MOU• OSC Resources • EEOC Immigrant Worker Team• EEOC Work on National Origin/Document

Issues






Citizenships Status ≠ National Origin

Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973)

• Facts: Plaintiffs alleged discrimination based on Mexican national origin where the employer had a “US citizen only” hiring policy. But more than 96% of the employees were of Mexican descent.

• Held:“Congress did not intend the term ‘national origin’ to embrace citizenship requirements.”



https://web2.westlaw.com/find/default.wl?mt=205&db=780&tc=-1&rp=/find/default.wl&findtype=Y&ordoc=1993465789&serialnum=1973137108&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=7835F826&rs=WLW12.04



Citizenships Status ≠ National Origin

Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973)

• BUT… “an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination.”

• And…Title VII “prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.”






Citizenships Status Discrimination under IRCA

Treating workers differently based on

citizenship status • Unless required or permitted by law

Hiring/firing workers, or in recruitment or

referral of workers for a fee

Employers with 4 or more workers are covered




Who is Protected from Citizenship Status Discrimination?

Protected: U.S. citizens Recent lawful permanent

residents Asylees Refugees

Not Protected: Non-Immigrant visa holders Asylum applicants Lawful permanent

residents who have not applied for naturalization within 6 months of their eligibility

Undocumented workers





Federal Courts Interpreting Espinoza

Guimaraes v. Supervalue, 674 F.3d 962 (8th Cir. 2012):

• Plaintiff alleged national origin discrimination based on her discharge.

• Statement that supervisor was trying to interfere with “green card process” did not establish discriminatory animus based on national origin.

• While it could constitute intent to terminate based on citizenship status, “nothing in [Title VII] makes it illegal to discriminate on the basis of citizenship status or alienage.”







Citizenship Status or National Origin Discrimination?

• A foreign born workers are required to fill out paperwork in addition to the Form I-9 identifying their country of origin and to provide naturalization papers, if available.





Citizenship Status or National Origin Discrimination?

• Amina is a refugee from Africa and applies for a job at XYZ retail. She meets all the job requirements except for one in the ad that states, “U.S. citizenship required.” The investigation reveals that XYZ employs several work-authorized non-citizens of Northern European descent.





Treating employees differently based on national origin

Hiring/firing workers, or in recruitment or referral of workers for a fee

Extends to small employers that are not covered by Title VII (4-14 workers)

National Origin Discrimination under IRCA




Who is Protected from National Origin Discrimination?

Protected: All work authorized

individuals



Not Protected: Undocumented

workers



Discrimination in Employment Eligibility Verification: What is Document Abuse?




Definition of Document Abuse

Employers may not, for the purpose of verifying a worker’s employment eligibility:• request more or different document• reject reasonably genuine-looking documents, • specify certain documents

based on citizenship status or national origin






Who is Protected from Document Abuse?

Protected: All work authorized

individuals



Not Protected: Undocumented

individuals



Document Abuse Examples

• Requiring only non-U.S. citizens to provide a List A document, such as a Green Card

• Requiring new U.S. citizens to provide certificates of naturalization

• Requiring all Latinos to provide a Social Security Card

• Reverifying “green cards” (Form I-551)





Discrimination or Not?

• An employer decides to do an internal audit of all of its I-9s. It starts with the warehouse department, where most workers are Latino. The I-9s are a complete mess, so all employees are required to complete new ones. Employees who cannot produce a document within three days are fired. The employer never gets around to the rest of the audit.





Retaliation or Intimidation

Protection for people who: file a charge with OSC cooperate with an OSC investigation contest action that may constitute unfair documentary

practices assert rights under the INA's anti-discrimination provision

from intimidation, threats, coercion, and retaliation.






Comparison OSC and EEOC Jurisdiction



No terms and condition of employment No undocumented workers No disparate impact No compensatory damages Civil penalties OCAHO, not federal court



What is E-Verify



• Internet-based program available to employers that verifies an employee’s employment eligibility

• Program compares Form I-9 information with Department of Homeland Security and Social Security Administration databases

• With limited exceptions, used for new hires only, not existing employees

• OSC investigates discriminatory use of E-Verify



E-Verify Statistics 2011





E-Verify Program



• Employers who use E-Verify must use it for all new hires

• A worker who receives a “tentative nonconfirmation” (TNC) has the right to contest it

• Employers cannot take any adverse action against a worker while the worker is resolving the TNC

Call OSC to discuss whether an employer may be discriminating in the use of E-Verify



Discrimination or Not?

• Employer (not a federal contractor) signs up for E-Verify. In response to heightened ICE activity, the Employer decides to run existing employees that look like they might be undocumented through E-Verify. The investigation reveals that most but not all the workers are in fact undocumented.





Other Verification - Discrimination or Not?

• An employer decides that E-Verify is too complicated and instead conducts a background check on all employees before hire. Employees whose Social Security numbers do not match are not considered, but the employer has given a few “American-looking” women an opportunity to revolve the issue. These women were in fact U.S. citizens who had not updated their Social Security records after they married.





OSC can investigate employers in one of two ways:• Charge-Based– OSC investigates charges of discrimination filed

by injured parties or their representatives• OSC-Initiated– OSC can open independent investigation if OSC

believes that an employer may have engaged in unfair immigration-related employment practices



OSC Enforcement


If no settlement or dismissal:

• OSC files Complaint before Office of the Chief Administrative Hearing Office (OCAHO), Executive Office for Immigration Review (EOIR)

• Charging Party may file own complaint before OCAHO 120 days after charge is filed.



Possible Outcomes of an OSC Investigation


Hotline Intervention

• Allows us to help workers directly and intervene informally on their behalf

• Callers can remain anonymous if they wish and can ask to speak in any language

• Open 9am-5pm, Monday-Friday (Eastern)





FEPA and OSC MOU

• Purpose is to ensure that matters within the jurisdiction of either agency are referred

• Provides that where both agencies are investigating a charge arising from the same facts, the agencies will coordinate their investigations and share information

• Appoint each agency to serve as respective agents for the other to allow charging parties to file charges to satisfy statutory time limits





• Enhances the ability of both agencies to help more individuals – referrals

• Allows each agency to access remedies of the other agency (e.g., OSC can obtain civil penalties)

• Helps each agency obtain efficient global relief for the victim

• Provides each agency with enhanced investigative resources in coordinated investigation situations



Benefits of the MOU



OSC has an MOU with:• U.S. Citizenship and Immigration Services• U.S. Equal Employment Opportunity Commission• U.S. Department of Labor, Office of Federal Contract

Compliance Programs• 49 state and local partners in 36 states and territories



Do YOU have an MOU with OSC?

Every OSC MOU can be found on our website. Contact OSC to discuss a possible MOU.





How can we work together?• Training investigators and attorneys on how to

identify possible referrals to OSC• Distributing each agency’s materials to individuals

who may need our services• Identifying speaking opportunities and inviting each

other to speak at conferences and outreach events

Increasing Collaboration Between OSC, EEOC, and FEPAs




• Live or webinar training for your staff• Send representative to your outreach events, or

provide OSC public education materials• Provide technical assistance on document abuse, E-

Verify issues, and immigration status• Discuss a potential referral by sending email to

[email protected] or contacting me directly at [email protected] or (202) 305-4084

Resources of OSC

mailto:[email protected]

mailto:[email protected]


A. Baltazar BacaOffice of Special Counsel for Immigration-

Related Unfair Employment Practices

IF YOU HAVE THE RIGHT TO WORK,DON’T LET ANYONE TAKE IT AWAY.





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Documents

U.S. Department of Justice Civil Rights Division