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How to avoid discrimination in the I-9 process |
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by J. Bradley Pace, Attorney at Law
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Friday, 22 January 2010 |
 Question: How can I avoid discrimination in the I-9 process?
Answer: The Immigration and Nationality Act, as amended, (the "Act") prohibits the following four types of unlawful conduct:
(1) Citizenship or immigration status discrimination. This type of discrimination occurs when an employer treats employees differently based on their citizenship or immigration status in regard to hiring, firing, or recruitment or referral for a fee. With limited exceptions, this rule applies to employers with 4 or more employees.
(2) National origin discrimination. This relates to treatment of employees differently based on their national origin in regard to hiring, firing, or recruitment or referral for a fee. The Act's prohibition against this type of discrimination covers employers with 4 to 14 employees, with the EEOC agency covering larger employers.
(3) Document abuse. Document abuse occurs when employers treat persons differently in the Form I-9 process based on their national origin or citizenship status. For example, requiring employees to produce more documents than needed to satisfy the I-9, or demanding to see a certain document for verification purposes, or improperly rejecting documents. The Act covers this type of discrimination for companies with 4 or more employees.
(4) Retaliation. As the word implies, retaliation occurs when an employer intimidates, threatens, coerces, or otherwise retaliates against an individual who has in any way filed or participated in an immigration related employment discrimination charge, complaint, investigation, proceedings or hearing, or otherwise asserts his or her rights under the Act's anti-discrimination provisions.
The best way to avoid discrimination in the I-9 process is to treat all employees equally. Employers should not set different standards for employment eligibility because of national origin, citizenship status, or because of a "foreign looking" appearance or "foreign sounding" accent. Also, employers should avoid U.S. citizenship only hiring policies unless US citizenship is required by law for the specific position.
An employee may file a discrimination complaint if he or she feels they are a victim of employment discrimination. Also, any DHS officer can file such a complaint if they have a reason to believe that discrimination has occurred. Generally such charges must be filed with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (part of the U.S. Department of Justice Civil Rights Division), or the EEOC, as applicable, within 180 days of the alleged discriminatory conduct.
J. Bradely Pace is an Attorney at Law and also serves as Of Counsel to the law firm of Versfeld & Hugo, LLC. For questions regarding this week's I-9 Tip of the Week, please contact J. Bradley Pace at 913.226.6755.
I-9seminars.com will provide an "I-9 Tip of the Week" every week to assist HR professionals and other I-9 administrators with the Form I-9 process. If you have a suggestion for a "Tip of the Week," please contact Samara Nazir Zaman, Training Director of I-9seminars.com.
For the most recent news on I-9s, E-Verify and business immigration compliance, please follow I-9Seminars.com on Twitter.
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