It is illegal to discriminate on the basis of citizenship or national origin in recruiting, hiring, onboarding, or employing workers. Title VII of the Civil Rights Act of 1964 (“Title VII”) as well as the Immigration Reform and Control Act (“IRCA”) impose penalties on employers engaging in discriminatory employment practices. While prohibitions against citizenship and national origin discrimination may seem straightforward, there are many everyday scenarios that can subject an employer to liability. In particular, when creating company policies with regard to the employment of foreign workers or dealing with job applications from foreign workers, employers should be wary as to what questions they ask and what types of documentation they request.
Employers are generally not allowed to treat individuals differently in hiring, firing, or recruitment based on citizenship status or make employment decisions based on actual or apparent national origin. Employers may only take an individual’s citizenship into account if citizenship is an essential requirement for the job (i.e. required by law, regulation, executive order, or government contract). National origin discrimination includes, but is not limited to, discrimination due to place of birth, country of origin, ancestry, native language, and may be based on a perception that the individual looks or sounds “foreign,” or any other national origin indicator.
The categories of individuals protected from citizenship status discrimination are limited to: U.S. citizens, lawful permanent residents who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. 1national origin discrimination.
The Department of Justice (DOJ) has jurisdiction over citizenship discrimination claims as well as national origin claims involving entities with between four and 14 employees. The Equal Employment Opportunity Commission (EEOC) has jurisdiction over national origin claims involving employers with 15 or more employees. DOJ provides useful guidance in the form of technical assistance letters, and EEOC has published its enforcement guidance, both valuable resources in understanding the careful nuances of potentially discriminatory behavior.
Below are some typical questions that can arise in the recruitment and hiring process, which raise questions regarding citizenship and national origin discrimination.
Q: Must ABC Company (ABC) consider foreign workers who apply for positions with their company?
A: ABC is not required to sponsor eligible foreign nationals for employment within their organization, but ABC may not make assumptions about a candidate’s ability to provide appropriate work authorizing documents. In other words, ABC should not treat differently an otherwise qualified individual based on a suspicion that the individual may not be work authorized.
The DOJ cautions against making assumptions based on an individual’s employment authorization status, even if that assumption is based on the status documents the employee presents for Form I-9 verification. Where an employee presents a work authorization document in one category, he or she could be in the process of transitioning into a different immigration status that would extend or continue the individual’s ability to work in the U.S.
Q: What if ABC knows that a candidate for hire will require sponsorship in the future?
A: In limited circumstances, if ABC knows that it will need to sponsor a candidate for work authorization in the future (such as a student working pursuant to Optional Practical Training), it may consider this factor in deciding whether to extend an offer of employment.
It is important, however, that the employer not make assumptions as to the individual’s future ability to work, because immigration status can be fluid and changing. As noted above, there are many different fact patterns that could present themselves which would allow the person to acquire permanent residence without employer sponsorship. In addition, it is possible that the individual could be in the process of changing status into another category not requiring employer sponsorship as well. For example, a foreign national could have a pending application for asylum, or perhaps he or she is applying for U visa classification as a victim of a crime.
Q: May ABC include questions regarding immigration status in its advertising, application for employment, or pre-employment screening processes?
A: Employers who wish to notify job seekers that they do not sponsor work authorization are encouraged by DOJ to use the following language: Applicants must be currently authorized to work in the United States on a full-time basis.
In addition, DOJ has indicated that certain (carefully worded) pre-employment screening questions are unlikely to violate anti-discrimination rules. DOJ recommends that pre-screening questions avoid any references to immigration status and prefers the following language: Will you now or in the future require sponsorship for employment visa status (e.g. H-1B visa status)? It is important that this question be asked uniformly as part of the normal vetting process and not be directed toward particular individuals such as those who might have an unusual name or accent.
Q: May ABC request documents verifying employment eligibility prior to extending an offer of employment?
ABC may not request documents to verify employment eligibility prior to extending an offer of employment. It can, however, try to pre-screen for those requiring employer sponsorship to work lawfully in the U.S. Employment could also be conditioned for all prospective employees on providing appropriate documentation of work authorization and identity at as required for Form I-9 compliance.