Avoiding Immigration-Related Discrimination in Hiring 

By David Jones and Mark Trocinski

The Biden Administration signaled early on an intent to provide additional protections for immigrant workers from unlawful discrimination.   Employers should note, however, that there are provisions in the Immigration and Nationality Act, as well as Title VII of The Civil Rights Act of 1964, which already provide substantial protections to immigrant workers.  The fear of civil and criminal liability for violating the employment authorization verification requirements mandated by the Immigration and Nationality Act, as well as attempting to comply with other federal regulations such as the Export Administration Regulations or International Traffic in Arms Regulations, may lead an employer to take actions during its hiring practices that could result in a discrimination charge.

DISCRIMINATION UNDER THE IMMIGRATION AND NATIONALITY ACT (INA)

The Immigration Reform and Control Act of 1986 (IRCA) created an employer sanctions system requiring all employers in the U.S. to verify the identity and employment authorization of all employees hired on or after November 6, 1986 through the proper and timely completion of a Form I-9 (Employment Eligibility Verification).  

IRCA also created provisions barring certain immigration-related employment practices—namely, discrimination based on citizenship and immigration status and national origin at the time of hire or termination and during the employment eligibility verification process.  

Citizenship Status Discrimination

The Immigration and Nationality Act (INA) protects US 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 US citizens over LPRs is unlawful discrimination.  he only exception to this rule is national security.  Positions that require US citizenship for security clearances can lawfully be restricted to US citizens.  Even in those situations, however, blanket policies requiring US citizenship can still be discriminatory. 

Individuals who have a status other than US Citizen, US National, LPR or Asylee / Refugee are not protected by citizenship status discrimination laws, and employers are permitted to ask certain questions in order 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, for example, as long as the non-protected immigration status is truly the actual 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, native language, perception of looking or sounding foreign, or any other national origin indicator.  Choosing not to hire someone or treating an applicant differently based on 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 – i.e. it does not matter if the individual has a status other than US Citizen, US National, LPR or Asylee / Refugee, he or she is covered under national origin discrimination.

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, include 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 both 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 as well as national origin discrimination.  

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (“TITLE VII”)

Title VII protects employees and job applications from employment discrimination on the basis of race, color, religion, sex, and national origin. The definition of “employee” under Title VII is broad and extends its protections regardless of employees’ citizenship status or authorization for work.  As with the INA, national origin discrimination under Title VII involves treating employees or applicants unfavorably because they are from a particular part of the world, because of their accent or ethnicity, or because they are perceived to be from a particular part of the world or have a certain ethnic background. 

Title VII prohibits discrimination in the terms and conditions of employment, which includes hiring, firing, pay, job assignment, promotions, and benefits.  Title VII also protects employees from national origin harassment. Examples of harassment can include derogatory comments about one’s national origin, accent, or ethnicity. For harassment to be illegal, it must rise to the level of severe or pervasive, which means isolated incidents are not actionable. 

Though the Title VII protections extend to non-citizens and undocumented workers, the recovery of damages is not the same for undocumented workers. More specifically, back pay, front pay, and reinstatement are not available to undocumented workers because they are unauthorized to work. 

CONCLUSION

To avoid claims of discrimination with respect to hiring, the employer’s work starts with the application itself. On the application, employers should only inquire as to whether the applicant is authorized to work in the U.S. and avoid questions about national origin and citizenship. The same applies at the interview phase. Further, employers must avoid using I-9s as a screening tool. It is a good practice not to ask an applicant to complete an I-9 form until after the applicant has been offered and accepted the job offer.