Avoiding Discriminatory Hiring Practices
With the current surge in workplace immigration raids and I-9 audits, many employers may be tempted to be overly aggressive in the screening of job applicants, particularly as it relates to immigrant and Latino workers. While failure to properly complete I-9s and ensure worker eligibility can create liability with Immigration and Customs Enforcement, if employers go too far in doing so, their actions may be deemed discriminatory by the Department of Justice’s Immigrant and Employee Rights Section (IER).
IER enforces provisions of the Immigration and Nationality Act (INA) related to:
- citizenship status discrimination in hiring, firing or recruitment or referral for a fee;
- national origin discrimination in hiring, firing or recruitment or referral for a fee;
- unfair documentary practices during employment eligibility verification, Form I-9 and E-Verify; and
- retaliation or intimidation.
Additionally, actions involving “alienage discrimination,” which has been interpreted to include citizenship, have been permitted to proceed by some courts under Section 1981 of the Civil Rights Act of 1866.
Citizenship Status Discrimination
INA protects U.S. citizens, nationals, lawful permanent residents (LPRs) and asylees/refugees from discrimination based on immigration status. Employers may not treat protected individuals differently based on immigration status. For example, deciding not to hire LPRs or preferring U.S. citizens over LPRs is unlawful discrimination. The only exception to this rule is national security. Positions that require U.S. citizenship for security clearances can lawfully be restricted to U.S. citizens. Even in those situations, however, blanket policies requiring U.S. citizenship can still be discriminatory. An LPR also can lose citizenship status if he or she fails to apply for citizenship when eligible; however, employers are cautioned against trying to make such determinations.
Individuals who have a status other than U.S. citizen, U.S. national, LPR or asylee/refugee are not protected by citizenship status discrimination laws, and employers are permitted to ask certain questions to determine the immigration status of an individual before making a hiring decision. IER provides guidance on what questions are and are not lawful in the hiring process and has stated that employers may ask applicants if they “now or will in the future require immigration sponsorship.” Employers also may elaborate on what is meant by that question. Once an applicant answers in the affirmative, the employer may ask additional questions to ascertain the individual’s immigration status and may choose not to hire someone for reasons related to that status. In other words, it is not necessarily unlawful discrimination not to hire someone who is on a visa, has temporary protected status (TPS) or is protected under Deferred Action for Childhood Arrivals (DACA), for example, as long as the nonprotected immigration status is truly the reason for the decision.
National Origin Discrimination
National origin discrimination refers to discrimination based on:
- an individual’s place of birth, country of origin, ancestry or native language;
- because he/she is perceived as looking or sounding foreign; or
- based on any other national origin indicator.
Choosing not to hire someone or treating an applicant differently for any of these reasons is unlawful discrimination. A policy of applying additional screening or not hiring Latinos due to concerns about possible work eligibility issues, for example, is unlawful. Employers are permitted to ask whether an applicant will be able to show employment authorization at the time he or she begins work, so any concerns about an applicant’s work eligibility can be addressed individually through the I-9 process. All work-authorized individuals are protected from national origin discrimination, no matter whether the individual has a status other than U.S. citizen, U.S. national, LPR or asylee/refugee.
Unfair Documentary Practices During Employment Eligibility Verification
Unfair documentary practices during the employment eligibility verification process, which refers to the I-9 and E-Verify processes, includes actions such as requiring too many or specific I-9 documents, improperly rejecting I-9 documents, forcing an employee to complete an I-9 or go through E-Verify when not required, and the like. While such practices are a violation regardless of an individual’s immigration status or national origin, unfair documentary practices often overlap with both of those. For example, requiring LPRs to always present their green card for the I-9 would be an unfair documentary practice as well as citizenship status discrimination. Similarly, requiring Latinos to present more or different documents in the I-9 process would be both an unfair documentary practice and national origin discrimination.
Section 1981 of the Civil Rights Act of 1866
While the citizenship status discrimination provisions of the INA do not protect individuals such as those protected under DACA, individuals with TPS or visa holders, such individuals may be protected by Section 1981 of the Civil Rights Act of 1866. Unlike the INA, Section 1981 covers race and alienage. Alienage is distinct from national origin and has been interpreted to mean citizenship by the courts. Additionally, Section 1981 applies to “all persons within the jurisdiction of the United States.”
As recently as this year and going back to 2014, some circuit courts have allowed employment discrimination claims filed by individuals not protected by the citizenship status protection provided by the INA to proceed under Section 1981. These courts have held that a policy of hiring only U.S. citizens, U.S. nationals, permanent residents and asylees /refugees could be construed to discriminate against other legal aliens, which are a protected class under Section 1981. Long-held policies of employers restricting employment to individuals whose immigration status is not protected by the INA therefore may be deemed discriminatory.
Employers should use extra caution to ensure that their hiring practices comply with the INA. I-9 practices should be consistent and applicants should not be treated differently based on status or national origin. When an employer chooses not to hire someone whose status is not protected by the INA, the employer should document the specific lawful reason for doing so. Following the I-9 rules, being consistent in policies and documenting the lawful reason why an applicant was not hired are the best defenses against claims of immigration-related discrimination.