DOJ Revises Employment Verification Discrimination Rule

On December 19, 2016, the Civil Rights Division of the Department of Justice (DOJ) issued a final rule revising regulations under the Immigration and Nationality Act (INA) prohibiting certain unfair immigration-related employment practices. The revised regulations went into effect on January 18, 2017. The revisions conform the regulations to the statutory text as amended in 1996, which states that unfair documentary practices are unlawful if done only for the “purpose or with the intent of discriminating” on the basis of citizenship status or national origin. The newly amended regulations simplify the statutory terms, add clarity with additional definitions and update the procedures for filing and processing charges of discrimination to ensure effective investigations of unfair immigration-related employment practices.

Of particular importance to employers are the revisions to the employment eligibility verification process. The revised regulations make clear that in the I-9 process (including the E-Verify process), an employer can be guilty of prohibited discrimination on the basis of citizenship status or national origin even absent a showing of ill will or animus. In other words, intentional disparate treatment is strictly prohibited and employers should not ask for specific documents based on the immigration status of an applicant or employee. Requesting specific employment eligibility verification documents unnecessarily limits an employee’s choice of documentation. Employers must ensure that their policies and practices are in compliance with the newly amended regulations.

Learn more in this SHRM article.