Preventing Discrimination
A part of the Immigration and Nationality Act, found at 8 U.S.C. section 1324b, prohibits employers from discriminating against individuals based on their citizenship or immigration status, or their national origin, during the hiring, firing, recruiting, Form I-9, or E-Verify processes. Employers should develop, implement, and enforce nondiscrimination policies, practices, and procedures, and ensure that all employees (and their authorized representatives, such as those completing Form I-9 or creating E-Verify cases on their behalf) understand the rules. Employers should also provide them with adequate training on employer responsibilities and worker rights.
An employer cannot discriminate when:
- Announcing a job;
- Taking applications;
- Performing interviews;
- Making job offers;
- Verifying an individual’s authorization to work;
- Hiring an individual; or
- Terminating an individual’s employment.
Employers also cannot retaliate against a person who:
- Files a charge of discrimination with the Immigrant and Employee Rights Section (IER);
- Participates in an investigation or prosecution of a discrimination complaint; or
- Asserts their rights or the rights of another person under anti-discrimination laws.
IER 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 under Title VII of the Civil Rights Act of 1964. IER generally investigates national origin claims against employers with four to 14 employees, and EEOC generally investigates national origin claims against employers with 15 or more employees.
Preventing Discrimination in the Form I-9 and E-Verify Processes
Employers must accept any valid document an employee presents as long as the document reasonably appears to be genuine and to relate to the employee. Most of these documents can be found on the Lists of Acceptable Documents. Employers cannot, based on an individual’s citizenship, immigration status, or national origin:
- 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 an acceptable receipt;
- Request a specific document for Form I-9; or
- Request specific documents to create an E-Verify case or based on an E-Verify Tentative Nonconfirmation.
Remember: Employers must reject documents that do not reasonably appear to be genuine or to relate to the individual presenting them.
| Types | What is prohibited? | Which employers are covered? |
|---|---|---|
| Citizenship or immigration status | Employers cannot discriminate against individuals when hiring, firing, or recruiting because the individuals are or are not U.S. citizens, or because of their immigration status or type of employment authorization. U.S. citizens, noncitizen nationals, asylees, refugees, and recent permanent residents are protected from this type of discrimination. | Employers with four or more employees are covered. |
| National origin | Employers cannot discriminate against individuals when hiring, firing, or recruiting based on the individual’s place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding “foreign.” | Generally, IER covers employers with four to 14 employees. (Generally, the EEOC covers employers with more than 14 employees. The EEOC also covers other aspects of employment, including terms and conditions.) |
| Unfair documentary practices | Employers cannot, based on an individual’s citizenship, immigration status, or national origin:
|
All employers. |
|
Retaliation/intimidation |
Employers cannot intimidate, threaten, coerce, or retaliate against a person because that person:
|
All employers. |
The federal government may penalize employers who discriminate against employees.