Employers already know that Title VII prohibits discrimination on the basis of national origin and citizenship status. However, they may not be aware that the federal Immigration and Nationality Act also contains anti-discrimination provisions linked to the employer’s recruiting and hiring practices. INA specifically prohibits discrimination in the form of requesting documents that go beyond legal requirements for demonstrating authorization to work in the U.S.
Earlier this month, the Department of Justice issued proposed regulations that would significantly strengthen and expand the reach of these anti-discrimination measures. First, the rules codify DOJ’s position that applicants who believe they have been discriminated against during the hiring process do not have to prove intent. In other words, employers would be strictly liable for requesting documents that go beyond legal requirements.
Second, DOJ makes clear that the rule’s prohibitions extend to both the I-9 and E-Verify authorization confirmation processes. In fact, DOJ stated its intent to access E-Verify information to identify statistical aberrations that might indicate non-compliance by employers. Some employers may decide to forego E-Verify as a result of these changes, but companies in North Carolina and South Carolina are required by state law to use the system in many circumstances.
INA’s anti-discrimination provisions apply to all employers with four or more employees (Title VII only applies at the 15-employee threshold), including part-time employees. Violators can be subject to lawsuits seeking back pay, reinstatement and compensatory damages. Employers should review their hiring procedures to confirm that they are not seeking any information or other measures from applicants that go beyond federal work authorization requirements. DOJ is accepting comments on the proposed rules for 30 days.