Avoiding Anti-Discrimination Provisions in Recruiting, Hiring and the Form I-9 Process

The Immigration Reform and Control Act (IRCA) has two main requirements of employers:
(1) To hire only persons authorized to work in the United States: and,
(2) To not discriminate on the basis of citizenship status or national origin.

IRCA was enacted to control unauthorized immigration to the United States. Under IRCA, employers may be sanctioned by the Department of Homeland Security (USCIS and ICE) for knowingly hiring non-U.S. citizens who are not authorized to work in the United States.

When Congress enacted IRCA 1986 it was concerned that the new law’s identity-document verification and sanctions would cause employers to discriminate against “foreign looking” U.S. citizens and legal aliens. A 1990 GAO study found that IRCA has triggered a “substantial amount” of discrimination. The GAO study found that Hispanic applicants were three times more likely to encounter unfavorable treatment, and Anglo applicants received 52% more job offers than the Hispanics.

Accordingly, part of the IRCA forbids employment discrimination based on citizenship, national origin, or immigration status.

• Employers may not treat individuals differently because they are, or are not, U.S. citizens or other work-authorized individuals. U.S. citizens, recent permanent residents, asylees, and other refugees are protected from citizenship-status discrimination.
• Employers with more than 3 and fewer than 15 employees may not treat individuals differently because of their place or birth, country of origin, ancestry, native language, or accent, or because they are perceived as looking or sounding “foreign.” U.S. citizens and all other work-authorized individuals are protected from national-origin discrimination.
• Employers may not, on the basis of citizenship status or national origin: (1) Request more or different documents than are required to verify employment eligibility and identity of other employees, or (2) Reject reasonably genuine-looking documents or specify certain documents over others.
  

The following are common examples of UIREP discrimination.

• Refusing to hire a 'protected individual' because of that individual's national origin or citizenship status.
• Refusing to recall a laid-off employee because of that individual's national origin or citizenship status.
• Discharging a 'protected individual' because of that individual's national origin or citizenship status. (Keep in mind that the "protected class" for each type of status is different.)
• Requesting specific documents in completing the employment eligibility verification procedure ("document abuse").

A request for specific documentation is unlawful if it is made for the purpose or with the intent of discriminating against an individual on the basis of national origin or citizenship status. As a result, employers who make such requests to clarify ambiguous situations presented by conflicts in the employee's statements and the presented documents should not be held liable for document abuse.

The employer discrimination must be "knowing and intentional".

IRCA's discrimination coverage does not include:

• Employers with three or fewer employees;
• Anti-Discrimination Provisions in the terms or conditions of employment, such as compensation;
• There is an exemption from discrimination liability where the discrimination is required in order to comply with law, regulation, or executive order, or is required by a federal, state, or local government contract. However, this exemption is carefully reviewed on a case by case basis.

Exception: The employer may have a policy of declining to hire any alien who is not a permanent resident, legalized alien (or legalization applicant), refugee, or asylee without violating IRCA's prohibition against citizenship status discrimination.

An employer SHOULD NOT:

1. Set different employment eligibility verification standards, or require that different documents be presented by employees, because of national origin and citizenship status. For example, employers cannot demand that non-U.S. citizens present DHS-issued documents.

Each employee must be allowed to choose the documents that s/he presents from the list of acceptable Form I-9 documents. For example, both citizens and work authorized aliens may produce a driver's license (List B) and an unrestricted Social Security card (List C) to establish identity and employment eligibility.

2. Request to see employment eligibility verification documents before hire and completion of the Form I-9 because the empoyee looks or sounds "foreign" or because someone states that s/he is not a U.S. citizen.

3. Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.

4. Request during reverification that an employee present a new unexpired employment authorization document (EAD) if s/he presented an EAD during initial verification. For re-verification each employee must be free to choose to present any document either from List A or from List C. Refugees and asylees may possess EADs, but they are authorized to work based by virtue of their immigration status and may present other documents that prove work authorization from List A or List C to show on re-verification, such as an unrestricted Social Security card.

5. Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law, regulation, executive order, or federal, state, or local government contract. On an individual basis, an employer may legally prefer a U.S. citizen or national over an equally qualified alien to fill a specific position, but the employer may not adopt a blanket policy of always preferring citizens over non-citizens.

6. Refuse to accept documents during the employment eligibility verification procedure that are acceptable documents under the law, that relate to the individual, and that appear on their face to be genuine (also called "document abuse"). An employer cannot be held liable for document abuse unless the employer's refusal to honor documents is made for the purpose or with the intent of discriminating against an individual on the basis of national origin or citizenship status. For example, an employer should not be held liable if it refuses to honor documents that conflict with statements made by the employee.

7. Engage in intimidation, threats, coercion, or retaliation, including discharge, against an employee who exercises his/her rights under IRCA's anti-discrimination provision. This protection extends not only to an employee who is the target of discrimination, but also to an employee who may speak up in support of the targeted employee.

Note. An employer covered by a collective bargaining contract that addresses UIREPs should discuss whether the terms of the collective bargaining agreement may create additional considerations based on National Labor Relations Board (NLRB) enforcement.