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Government Security News January 2017 Digital Edition

Government Security News January 2017 Digital Edition. Available on the GSN Magazine Website at

DOJ issues final rule

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 26 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

eason an employer may have had. For example, an employer may try to be helpful by letting a person who has identified herself as a permanent resident know that she could provide her green card for documentation. The employer’s intent is to be helpful, not to discriminate. This is different than requiring all foreign-born employees to present a green card, which is clearly discriminatory. However, the final rule does not ultimately resolve this issue because DOJ also explains that if the employer is intentionally treating the permanent resident differently, i.e., because of her citizenship status, then the employer has discriminated. • Individuals who submit a discrimination claim within the 180-day time period provided by law now have an additional 45 days to submit information if the Special Counsel decides that they did not provide enough information to meet the requirements for a “charge.” • The DOJ Special Counsel may accept charges filed after the 180-day time limit under certain circumstances. • The Special Counsel may file a complaint based on an investigation the office initiated, up to five years after the date of alleged discrimination. While the final rule still does not provide answers to all of the questions raised by employers, the agency has clarified its position as to enforcement of the law. House members join effort to create independent commission Continued from page 5 92.Rick Larsen 93.John Larson 94.Brenda Lawrence 95.Barbara Lee 96.Sander Levin 97.John Lewis 98.Ted Lieu 99.David Loebsack 100.Zoe Lofgren 101.Alan Lowenthal 102.Nita Lowey 103.Ben Ray Lujan 104.Michelle Lujan Grisham 105.Stephen Lynch 106.Carolyn Maloney 107.Doris Matsui 108.Betty McCollum 109.A. Donald McEachin 110.James P. McGovern 111.Jerry McNerney 112.Gregory Meeks 113.Grace Meng 114.Seth Moulton 115.Gwen Moore 116.Stephanie Murphy 117.Jerrold Nadler 118.Grace Napolitano 119.Richard Neal 120.Donald Norcross 121.Eleanor Holmes Norton 122.Beto O’Rourke 123.Frank Pallone 124.Jimmy Panetta 125.Bill Pascrell 126.Nancy Pelosi 127.Ed Perlmutter 128.Scott Peters 129.Collin Peterson 130.Stacey Plaskett 131.Mark Pocan 132.Jared Polis 27 133.David Price 134.Mike Quigley 135.Jamie Raskin 136.Kathleen Rice 137.Cedric Richmond 138.Jacky Rosen 139.Lucille Roybal-Allard 140.Raul Ruiz 141.C.A. Dutch Ruppersberger 142.Bobby Rush 143.Tim Ryan 144.Gregorio Sablan 145.Linda Sanchez 146.John Sarbanes 147.Janice Schakowsky 148.Adam Schiff 149.Bradley Schneider 150.Bobby Scott 151.Jose Serrano 152.Terri Sewell 153.Carol Shea-Porter 154.Brad Sherman 155.Kyrsten Sinema 156.Albio Sires 157.Louise Slaughter 158.Adam Smith 159.Darren Soto 160.Jackie Speier 161.Thomas Suozzi 162.Mark Takano 163.Bennie Thompson 164.Mike Thompson 165.Dina Titus 166.Paul Tonko 167.Norma Torres 168.Niki Tsongas 169.Juan Vargas 170.Marc Veasey 171.Filemon Vela 172.Nydia Velazquez 173.Debbie Wasserman Schultz 174.Maxine Waters 175.Bonnie Watson Coleman 176.Peter Welch 177.John Yarmuth