CFGI Mentioned – “Navigating Anti-Discrimination Law in the Hiring Process”


“Marketa Lindt, an employment and immigration attorney in the Chicago office of Sidley Austin, often hears from companies concerned about discrimination. 

“…Employers may be wondering if it's OK to only hire U.S. citizens in the wake of the Trump administration's ‘Buy American, Hire American’ executive order.

“The answer to that question is no, Lindt told attendees of the Council for Global Immigration's 2018 Symposium. ‘The anti-discrimination provisions are still on the books,’ she said…The law protects U.S. citizens from discrimination, but it also protects permanent residents and other work-authorized individuals. 

“Lindt explained that the Immigrant and Employee Rights Section (IER) of the Department of Justice is responsible for enforcing the anti-discrimination provisions of the Immigration and Nationality Act…The law also protects all work-authorized individuals, including U.S. citizens and permanent residents, from national origin discrimination and unfair documentary practices relating to the employment eligibility verification process.

“Discrimination in the immigration context is very specific and different from the definition used in general employment law. The IER clarified in January 2017 that treating a worker differently during the hiring or employment verification process, regardless of whether the intent is to harm or help, is prohibited. 

“…Prior to the revision, hiring practices were not considered discriminatory if they were carried out without the intent to harm.

“…Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding ‘foreign.’

“…Employers may not treat individuals differently based on citizenship or immigration status…Examples of this form of discrimination would include hiring U.S. citizens only or preferring foreign workers on temporary visas.

“…[Lindt] added that the government is looking very closely at employers that it thinks prefer foreign workers on H-1B visas or other guest workers over U.S. citizens. Organizations need to be careful not only in direct hiring, but when deciding to outsource roles as well.

“…Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify a preference for certain documents over others.

“…She recommended that whomever conducts the I-9 process use a script when asking new hires to provide one document from List A, or one document from List B and one document from List C, to establish both identity and work eligibility.”

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