This article was submitted by the U.S. Office of Special Counsel for Immigration-Related Unfair Employment Practices, to follow up on an earlier Salary.com piece regarding illegal job interview questions.
Employers must know that while they have the obligation to obey immigration law by hiring only authorized workers, they also must not violate anti-discrimination laws when hiring or firing workers.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), in the Justice Department’s Civil Rights Division, is responsible for enforcing the anti-discrimination provision of our nation’s immigration law, the Immigration and Nationality Act, as well as for conducting an outreach and education program for employers. Specifically, the law prohibits employers from engaging in four types of discriminatory acts:
Employers may not refuse to hire and may not terminate workers authorized to work in the United States because of national origin or citizenship status. For example, employers may not refuse to hire a job applicant because of the applicant’s foreign appearance or accent.
Employers may not require job applicants to hold a certain citizenship or visa status unless mandated by law or government contract. This means that preferences for U.S. citizens or temporary visa holders are against the law. Moreover, an employer who prefers to hire undocumented workers over authorized workers may be violating immigration law in two distinct ways - by employing unauthorized workers and by discriminating against authorized workers who may be protected for citizenship status discrimination.
Employers may not discriminate by demanding more documents than what the law requires from workers to prove identity and eligibility to work in this country (known as “document abuse”). A list of acceptable documents is provided on the back of the Employment Eligibility Verification form (commonly known as Form I-9), which employers must complete for all newly hired workers.
Employers may not retaliate against workers who assert their rights under the anti-discrimination provision. Employers who discriminate or retaliate against workers may be required to hire or re¬hire the worker, pay back wages, pay civil penalties, change internal policies to avoid further discrimination, and comply with a monitoring period imposed by the Department of Justice.
To better understand your responsibilities as an employer under the anti-discrimination provision, please visit OSC’s website at www.justice.gov/crt/about/osc. Here you will find additional employer information and materials, including a variety of printed and video materials available for download, information on how to sign up for email alerts, as well as sign-up information for OSC’s new webinars for employers. (Upon request, OSC will also send reasonable quantities of these printed and video materials at no cost.)
OSC also operates a toll-free telephone hotline which serves as an informal means of alternate dispute resolution. Through its hotline, OSC staff can successfully intervene to resolve an allegation of discrimination, precluding the need for OSC to investigate further. Employers can also call the hotline with questions about avoiding discrimination during the I-9 and E-Verify processes, as well as answering questions about non-discriminatory practices relating to hiring and termination. The Employer Hotline is: 1-800-255-8155 (Voice) or 1-800-237-2515 (TTY).
Another effective way to become familiar with employers’ obligations is to take advantage of OSC’s education and outreach resources. OSC has conducted many outreach presentations to employers and employer groups across the country. Contact our Public Affairs Specialist to schedule a presentation or webinar for your organization at 202-305-1740.
OSC looks forward to working with you to ensure that you are in compliance with the anti-discrimination provision of the INA by not engaging in national origin or citizenship status discrimination.