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.
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.
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.
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.
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.
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.
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 rejects reasonably 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."
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."
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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