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10.2 Types of Employment Discrimination Prohibited Under the INA

Unfair Documentary Practices

The INA prohibits you from committing unfair documentary practices, which means discriminating against an employee when you verify their identity and employment authorization (generally, the Form I-9 and E-Verify processes). Unfair documentary practices generally occur when employers treat individuals differently on the basis of national origin or citizenship or immigration status in the Form I-9 or E-Verify process, or any other process an employer may use to verify employment eligibility. This can be broadly categorized into three types of conduct:

  1. Requesting that an individual produce more or different documents than are required by Form I-9 to establish their identity and employment authorization;
  2. Requesting that individuals present a particular document, such as a Form I-551, Permanent Resident Card, to establish identity and/or employment authorization; and
  3. Rejecting documents that reasonably appear to be genuine and to relate to the individuals presenting them.

These practices may constitute unfair documentary practices if they are committed based on citizenship or immigration status, or national origin, and should be avoided when verifying employment eligibility.

Citizenship Status Discrimination

Citizenship or immigration status discrimination occurs when an employer treats individuals differently based on their real or perceived citizenship or immigration status with respect to hiring, firing, or recruitment, or referral for a fee if the employer has four or more employees. U.S. citizens, U.S. nationals, asylees, refugees, and recent permanent residents are protected from this type of discrimination.

Note: Certain employers are required by a law, executive order, regulation, or government contract to only hire U.S. citizens to fill specific positions.

National Origin Discrimination

National origin discrimination generally occurs when an employer treats individuals differently based on their national origin with respect to hiring, firing, recruitment, or referral for a fee. An individual’s national origin can relate to many things, such as their place of birth, country of origin, ethnicity, ancestry, native language, accent, or the perception that they look or sound “foreign.” The INA’s national origin discrimination prohibition generally covers employers with 4 to 14 employees and protects all employment-authorized individuals. The EEOC generally has jurisdiction over national origin claims involving employers with 15 or more employees, regardless of the work authorization status of the discrimination victims.

Retaliation

An employer or other covered entity cannot intimidate, threaten, coerce, or otherwise retaliate against individuals because they:

  • Filed an immigration-related employment discrimination charge or complaint;
  • Testified or participated in any IER investigation, proceeding, or hearing; or
  • Otherwise asserted their or another person’s rights under the INA’s anti-discrimination provisions.