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Discrimination and document abuse in the hiring process

published in Oklahoma Employment Law Letter | May 1, 2013

By Kathy Neal

You’ve been verifying I-9s since the Immigration Reform and Control Act (IRCA) took effect in 1986. You know the difference between List A, B, and C documents, and you can fill out I-9s in your sleep. Imagine your surprise to receive a letter from the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the Civil Rights Division of the U.S. Department of Justice (DOJ) notifying you that you are being investigated for document abuse and discrimination in the employment eligibility verification process. What? Isn’t one of the purposes of Form I-9 to keep unauthorized aliens from being employed in the United States? Now you’re really confused!

Background

The antidiscrimination provision of the Immigration and Nationality Act (INA) prohibits four types of unlawful conduct: (1) national origin discrimination, (2) citizenship or immigration status discrimination, (3) unfair documentary practices during the Form I-9 process (document abuse), and (4) retaliation. The Equal Employment Opportunity Commission (EEOC) and the OSC share jurisdiction over national origin discrimination charges. The EEOC has jurisdiction over employers with 15 or more employees, while the OSC has jurisdiction over employers with more than three and fewer than 15 employees.

When Title VII applies to both intentional and unintentional acts of discrimination in all facets of the employment relationship, the OSC’s jurisdiction is limited to intentional discrimination arising out of hiring, firing, and recruitment or referral for a fee.

Understanding the terms

National origin relates to an employee’s place of birth, country of origin, ethnicity, ancestry, native language, or accent or the perception that he looks or sounds “foreign.” Citizenship status discrimination occurs when an employer treats an employee differently from other employees based on the real or perceived citizenship or immigration status of the employee. The OSC has exclusive jurisdiction over citizenship and immigration status discrimination claims against all employers with four or more employees. There are five types of employees who are protected from citizenship and immigration status discrimination: (1) U.S. citizens, (2) permanent alien residents, (3) temporary alien residents, (4) asylees, and (5) refugees.

Document abuse occurs when, in the Form I-9 verification process, an employer treats an employee differently from other employees based on his national origin, citizenship, or immigration status. Remember, all persons who are authorized to work in the United States are protected from this type of discrimination.

So how does document abuse occur?

Document abuse takes several forms. Specifically, it occurs when you:

  • Request that an employee produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization (an employee must present one document from List A or one document from List B and one from List C);
  • Request that an employee present a particular document, such as a green card, to establish identity and/or employment authorization (you can’t specify the documents an employee may present from the lists of acceptable documents);
  • Reject documents that reasonably appear to be genuine and relate to the employee presenting them (if documents reasonably appear to be genuine and relate to the person presenting them, you must accept them);
  • Treat groups of applicants differently when completing the Form I-9?e.g., requiring only employees with Hispanic surnames to present particular documents that you don’t require other employees to present or demanding non-U.S. citizens present documents issued by the U.S. Department of Homeland Security (DHS);
  • Request to see employment eligibility verification documents before hire and completion of an applicant’s I-9 because he “looks foreign” or states he isn’t a U.S. citizen (you can’t use the I-9 process to screen job applicants);
  • Limit jobs to U.S. citizens (unless U.S. citizenship is required for the specific position by law, regulation, executive order, or the like); or
  • Refuse to accept a document or refuse to hire an individual because a document has a future expiration date.

So how does the OCS get involved in determining whether document abuse exists? Discrimination charges may be filed by (1) an individual who believes he is a victim of employment discrimination, (2) someone acting on his behalf, or (3) a DHS officer who has reason to believe that discrimination has occurred. A charge must be filed with the OSC within 180 days of the alleged discriminatory act. Upon receipt of a charge, the OSC will notify the employer that a charge has been received and begin its investigation. Within 120 days after receiving a charge of discrimination, the agency will determine whether there is reasonable cause to believe that the charge is true and whether to file a complaint before an administrative law judge (ALJ).

The cost of discrimination

If a complaint is filed, an ALJ will conduct a hearing and issue an order. The ALJ may require the employer to hire individuals affected by the discriminatory practices, with or without back pay. He also can impose a civil penalty for document abuse ranging from $100 to $1,000 for each victim of discrimination and require the employer to (1) post notices, (2) educate hiring personnel on compliance, (3) remove performance-related documents from a personnel file, and/or (4) lift any restrictions on an employee’s assignments, work shifts, or movements.

Back-pay awards are limited to two years from the date the charge was filed with the OCS. The award is reduced by any interim earnings or amounts earnable with reasonable diligence by the individual. It should be noted, however, that an ALJ may not require the hiring of an individual or back pay if the employer can show the person wasn’t hired for any reason other than discrimination based on national origin or citizenship status.

An ALJ also may award attorneys’ fees to a prevailing party (other than the U.S. government) if the losing party’s argument is without reasonable foundation in law and fact. An ALJ’s order is appealable to the U.S. court of appeals for the circuit in which (1) the violation is alleged to have occurred or (2) the employer resides or transacts business. The decision of the appeals court is subject to review by the U.S. Supreme Court upon a request for review.

This all sounds very ominous, right? But there are a couple of things to note. One is that there is no overlap with EEOC complaints. An individual cannot file a charge of an unfair immigration-related employment practice if a charge relating to that practice has already been filed with the OSC or vice versa. Additionally, on an individual basis, an employer may legally prefer a U.S. citizen or noncitizen national over an equally qualified alien to fill a specific position. It may not, however, adopt a blanket policy of preferring citizens over noncitizens.

Bottom line

Make sure that employees involved in the employment verification process are well trained and understand the parameters of what is required by the IRCA with respect to determining whether an employee is eligible for employment. Then, review the process periodically to make sure there are no errors.