Human Resources News & Insights

It just got a little easier to charge you with discrimination

Now, even if you’re trying to help individuals work for your company, you could be charged with discrimination. 

New regulations, which kicked in January 18, 2017, just made the employee verification process a little more dangerous.

The new regulations, which come from the Department of Justice (DOJ), say it’s now discriminatory to treat workers differently when requesting verification documents during the I-9 or E-Verify process — regardless of whether the employer’s intent is to harm or help an individual.

Treating workers differently in either process could now lead to charges of national origin discrimination or citizenship status discrimination.

Essentially, the DOJ is now redefining (i.e., broadening) “discrimination” under the Immigration and Nationality Act’s anti-discrimination provision to mean:

” … the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.”

Under previous regulations, an employer could only be charged with discrimination in the employment verification process if the employer’s intent was to harm an individual. That’s just not the case anymore.

Stick to the list

An example of how an employer could be charged with discrimination under the new regulations: Recommending an individual use specific documents during the I-9 or E-Verify process — or rejecting an individual’s use of valid documents.

Even if your recommendations are meant to help the individual complete the process, giving one employee a recommendation that may in some way differ from what you tell another individual could be deemed discriminatory.

So what are you supposed to do?

The DOJ has a very important piece of advice for employers: Stick to the list.

More specifically, here’s what the DOJ says in the regulations, which were just published in the Federal Register:

“An employer that is interested in helping workers through the employment eligibility verification process should provide all workers with the Lists of Acceptable Documents and explain to them that they may present one List A document or one List B document and one List C document.”

With this passage, the DOJ may be creating a safe harbor for employers.

Bottom line: Don’t make recommendations — or be picky — about which documents people use to verify their employment status, as long as the documents they’re using are on List A, or List B and List C.

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  • That’s a brave step. Discrimination should be condemned in all possible situations. There should not be a case where you put one human above another. Everyone is created equal. When it comes to workplace discrimination, IMO HR can play a pivotal role in sustaining it. I feel down the line, it becomes HR’s responsibility to educate everyone in an organization and take ’em forward.