Navigating Anti-Discrimination Law in the Hiring Process

​Marketa Lindt, an employment and immigration attorney in the Chicago office of Sidley Austin, often hears from companies concerned about discrimination. They ask her questions like "Do we have to sponsor H-1Bs?," "Is it OK to make the hiring process easier for Spanish speakers?" and, more recently, "Can we track our workers' countries of citizenship to address travel issues and visa problems?"

Employers may be wondering if it's OK to only hire U.S. citizens in the wake of the Trump administration's "Buy American, Hire American" executive order.

The answer to that question is no, Lindt told attendees of the Council for Global Immigration's 2018 Symposium. "The anti-discrimination provisions are still on the books," she said during her session, given June 11. The law protects U.S. citizens from discrimination, but it also protects permanent residents and other work-authorized individuals. "I think there's confusion about this because of all the rhetoric out there," she said.

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Lindt explained that the Immigrant and Employee Rights Section (IER) of the Department of Justice is responsible for enforcing the anti-discrimination provisions of the Immigration and Nationality Act, which protects U.S. citizens and permanent residents from employment discrimination based upon citizenship status. The law also protects all work-authorized individuals, including U.S. citizens and permanent residents, from national origin discrimination and unfair documentary practices relating to the employment eligibility verification process.

Discrimination in the immigration context is very specific and different from the definition used in general employment law. The IER clarified in January 2017 that treating a worker differently during the hiring or employment verification process, regardless of whether the intent is to harm or help, is prohibited. Discrimination was redefined to mean "the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for such differential treatment, and regardless of whether such treatment is because of animus or hostility."

Prior to the revision, hiring practices were not considered discriminatory if they were carried out without the intent to harm.

National Origin

Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign." Lindt listed "obvious examples" such as refusing to hire Chinese people or having Mexican applicants go through a more-difficult process.

Citizenship Status

Employers may not treat individuals differently based on citizenship or immigration status. A technical exception is for permanent residents who do not apply for naturalization within six months of eligibility. Examples of this form of discrimination would include hiring U.S. citizens only or preferring foreign workers on temporary visas. "This one is tricky for some employers," Lindt said. "Remember that U.S. citizens and permanent residents are protected. The provision does not cover people who hold employment authorization documents or work visas. It's OK to refuse to hire H-1Bs, for example. If someone requires employer sponsorship of any kind, you can use that as the basis not to hire them, because, as an employer, you're not required to sponsor anyone."

She added that the government is looking very closely at employers that it thinks prefer foreign workers on H-1B visas or other guest workers over U.S. citizens. Organizations need to be careful not only in direct hiring, but when deciding to outsource roles as well.

"That doesn't mean you can't outsource, but how did you make your decisions if you conducted layoffs related to an outsourcing?" she asked. "It's amazing what people have said either in e-mail or verbally that comes to light during an investigation. The best way to protect your company when outsourcing is to make sure that the decisions were made for legitimate business reasons and you have all the documentation that bears that out."

Document Abuse

Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify a preference for certain documents over others.

"This is where well-meaning employers get into trouble when they're just trying to help," Lindt said. "The company gets in trouble if, for example, a new hire asks if they should bring their green card and the person says 'yes.' It's that simple. The person didn't intend to discriminate."

She recommended that whomever conducts the I-9 process use a script when asking new hires to provide one document from List A, or one document from List B and one document from List C, to establish both identity and work eligibility.

"The I-9 process is one area where you don't want people getting creative," she said.

She also recommended auditing the hiring process to see what conversations HR, recruiters and hiring managers are having with applicants and what documents are being talked about during orientation. "Just sit in on orientation and see what people are being told," she said. "You might be surprised what you find."

Investigation Tips

Lindt explained that employers have an opportunity to mitigate discrimination cases opened by IER.

"Often, the agency will contact the employer, ask about the charge and try to resolve it by educating the employer," she said. "If the employer says, 'We didn't realize that the action was impermissible; we'd be happy to reinstate the employee,' that's often the end of these charges. But if the employer does not agree with the charge or the agency determines an investigation is required, the case moves into a more-formal full investigation."

The agency then sends the employer a lengthy questionnaire and requests lots of documents including I-9 forms. Interviews with HR, management, and current and former workers follow.

She recommended hiring counsel, and not doing anything that could be construed as obstruction of the investigation, such as telling people not to talk to government representatives.