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Preventing Discrimination

The Immigration and Nationality Act prohibits employers from discriminating against individuals based on their citizenship or immigration status, or based on their national origin, in the Form I-9 process. It is important for employers to develop, implement and enforce anti-discrimination policies, practices and procedures, and to ensure that all employees conducting Form I-9 verification or E-Verify confirmation understand all program rules. Employers should also provide appropriate and adequate employee education on employer responsibilities and worker rights.

To prevent discrimination, the employer should treat all people equally when

  • announcing a job
  • taking applications
  • performing interviews
  • making job offers
  • verifying the individual's authorization to work
  • hiring the individual
  • terminating the individual's employment

Employers also must not retaliate against a person who

  • files a charge of discrimination with OSC or EEOC
  • participates in an investigation or prosecution of a discrimination complaint
  • asserts his or her rights or the rights of another person under anti-discrimination laws

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigates charges of employment discrimination related to an individual's citizenship or immigration status or national origin. The Equal Employment Opportunity Commission (EEOC) also investigates employment discrimination based on national origin, in addition to other protected bases. OSC investigates national origin claims against employers with four to 14 employees, and EEOC investigates national origin claims against employers with 15 or more employees.

Preventing Discrimination in the Form I-9 Process

Employers must accept any document an employee presents from the Lists of Acceptable Documents, as long as the document reasonably appears to be genuine and to relate to the employee. Employers must not:

  • Demand that an employee show specific documents
  • Ask to see employment authorization documents before an individual accepts a job offer
  • Refuse to accept a document, or refuse to hire an individual, because a document will expire in the future
  • Refuse to accept a receipt that is acceptable for Form I-9 purposes
  • Demand a specific document when reverifying that an employee is authorized to work

Remember: Employers must reject documents that do not reasonably appear to be genuine or to relate to the individual presenting them.   

Types of Employment Discrimination Covered by OSC

Types

What is prohibited?

Who is protected?

Is my employer covered?

Citizenship or immigration status

Employers must not discriminate with respect to hiring, firing or recruitment or referral for a fee against individuals because they are or are not U.S. citizens or because of their immigration status or type of employment authorization

U.S. citizens, recent permanent residents, asylees and refugees

All employers with more than three employees are covered.

National origin

Employers must not discriminate with respect to hiring, firing or recruitment or referral for a fee against individuals based on their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding "foreign"

All employment-authorized individuals

OSC covers small employers with more than three but less than 15 employees. The Equal Employment Opportunity Commission (EEOC) covers larger employers.  EEOC also covers all aspects of employment, including terms and conditions of employment.

Document abuse

Employers must not request

  • more or different documents than are required to verify employment authorization and identity
  • reject documents that reasonably appear to be genuine and relate to the employee
  • specify certain documents over others based on an employee’s citizenship or immigration status, or national origin

All employment-authorized individuals

All employers with more than three employees are covered.

Retaliation

Employers must not intimidate, threaten, coerce, or retaliate against a person who:

  • files a charge with OSC or EEOC
  • participates in an investigation or prosecution of a discrimination complaint
  • contests action that may constitute discrimination
  • asserts his or her rights under anti-discrimination laws
  • asserts another person’s rights under anti-discrimination laws

All employment-authorized individuals

All employers with more than three employees are covered.

Employers who discriminate against employees may be penalized by the federal government.

Last Reviewed/Updated: 05/16/2011