Despite the large fines levied against employers for breaches of the INA's discrimination provision, the Department of Justice continues to settle with companies for these violations. One agency recently released guidance to help employers comply with the INA better.
Discrimination, as defined by the Immigration and Nationality Act, has repeatedly surfaced as an issue for employers across the country. Despite the large fines levied against employers for breaches of the INA's discrimination provision, the Department of Justice continues to settle with companies for these violations. One agency recently released guidance to help employers comply with the INA better.
About 11 percent of the 89,385 private sector charges filed with the Equal Employment and Opportunity Commission since 2015 alleged national origin discrimination, according to Lexology. The EEOC released guidance on national origin discrimination to help employees comply with the discrimination provision of the INA. The EEOC announced guidance on national origin discrimination for the first time in 14 years after seeking public input on the guidance over the summer. The agency's decision to offer help to employers comes as breaches of the discrimination provision continue to be a problem for them.
DOJ continues to punish employers for discrimination
This section of the INA prohibits employers from placing additional documentary burdens on individuals during the hiring process due to national origin. For example, asking a lawful permanent resident for a green card for employment eligibility verification is a violation of the INA. Instead, employers are required to make equivalent documentary requests of all new hires, regardless of citizenship status. As long as new hires bring the correct combination of reasonably genuine List A, B and C documents, they should be considered authorized to work in the U.S.
In August the DOJ levied a $175,000 fine against a San Diego staffing organization, according to the agency. The company asked immigrant new hires to provide specific documents for the Form I-9 and E-Verify, while it allowed U.S. citizens to bring whichever documents they chose to. Another staffing agency, based in Edison, New Jersey, received a $153,000 penalty in June following discrimination allegations. The company also required non-citizens to bring specific documents, while it allowed citizens to go with any valid proof of work eligibility.
EEOC explains national origin and discrimination
The EEOC's guidance explained what constitutes national origin under the INA and what discrimination means. The former refers to an individual who appears to be from a certain place or who has traits that indicate the person is of a certain nationality. The EEOC's guidance also extends beyond the INA, to describe numerous forms of discrimination, such as the use of slurs. In addition, the guidance described what falls outside the realm of discrimination, such as a language fluency requirement.
As the DOJ continues to single out employers for violations of the discrimination provision of the INA, it is important to ensure that staff is sufficiently trained on discrimination, as well as proper completion of the Form I-9. Taking steps like this will help employers avoid large fines levied for discrimination and other similar allegations.
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