Government Security News January 2017 Digital Edition

DOJ issues final rule about unfair
immigration-related employment practices
By Leslie Dellon
The U.S. Department of Justice’s
(DOJ) Civil Rights Division recently
issued a final rule, effective January
18, to update regulations that the
agency uses to enforce employmentrelated
anti-discrimination provisions
that Congress included in the
“unfair immigration-related employment
practices” section of the Immigration
and Nationality Act (INA).
The agency maintains that the update
clarifies the procedures for investigations
and charges of discrimination.
With the Immigration Reform and
Control Act of 1986, Congress added
a section to the Immigration and
Nationality Act that made it illegal
for employers to hire unauthorized
workers. In the same legislation, Congress
also added a section prohibiting
immigration-related discrimination
in the employment context. Congress
also created a Special Counsel for
Immigration-Related Unfair Employment
Practices within DOJ to enforce
the anti-discrimination provisions.
This was out of concern that overlycautious
employers would refuse to
hire, or take other discriminatory employment-related
actions against, U.S.
citizens or certain immigrants who
had work authorization but looked or
sounded “foreign.”
The law protects against discrimination
based on “national origin,”
which refers to being from a particular
country or region of the world, or
having an accent or appearing to be
of a particular ethnicity. The law also
protects against “citizenship status”
discrimination for U.S. citizens, nationals,
permanent residents (“green
card” holders), refugees, asylees, and
certain temporary residents. However,
those who are not U.S. citizens
or nationals will lose this additional
protection if they do not take steps to
become U.S. citizens within a specified
time period. The law does not
protect people not authorized to work
in the U.S. and excludes employers
with three or fewer employees, jobs
with a lawful citizenship requirement
or when a national origin discrimination
claim would be covered by a different
law.
In 1990, Congress added a protection
against a new form of immigration-related
discrimination. When
workers present documentation
proving they are authorized to work
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Photo by John Taylor
in the U.S., an employer cannot require
that they provide more or different
documents, such as rejecting
any documents other than a “green
card” from permanent residents.
In 1996, Congress amended this
documentation provision to specify
that an employer who requires “more
or different documents,” or refuses to
accept a document that “reasonably”
appears to be genuine would be acting
unlawfully only if the employer
acted “for the purpose or with the intent
of discriminating.”
In December, DOJ finally issued
regulations implementing this
amendment and making certain other
changes. Key elements of the new
regulations include:
• The name of the Special Counsel’s
office is changed to the Immigrant
and Employee Rights Section (which
remains part of DOJ’s Civil Rights Division)
because having more than one
Special Counsel’s office has caused
confusion. The Special Counsel’s title,
which is specified by the law, remains
unchanged.
• The new regulations include a definition
of “discriminate,” which the
agency maintains has clarified that
an employer’s intent to discriminate
must be based on national origin or
citizenship status. Some employers
remain concerned because the definition
of intent does not consider what