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IRCA Antidiscrimination Provisions

Summary

The Immigration Reform and Control Act of 1986 (IRCA) was enacted to control unauthorized immigration to the United States. Under IRCA, employers may be sanctioned by the Immigration and Naturalization Service (INS) for knowingly hiring non-U.S. citizens who are not authorized to work in the United States. To address the fear that employers would overreact to the threat of sanctions and discriminate against individuals who sounded or appeared "foreign," Congress also passed IRCA's antidiscrimination provisions.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice, enforces the antidiscrimination provisions. The OSC investigates and prosecutes employers charged with national origin and citizenship status discrimination with respect to hiring, firing and recruitment or referral for a fee, unfair documentary practices concerning the hiring process (document abuse), and retaliation under the antidiscrimination provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1324b. The OSC may be reached by telephone at 202-616-5594 and 1-800-255-7688.

Employers with four or more employees are prohibited from discriminating on the basis of citizenship status, which occurs when adverse employment decisions are made based upon an individual's real or perceived citizenship or immigration status. Examples of citizenship status discrimination include employers who hire only U.S. citizens or U.S. citizens and green card holders, employers who refuse to hire asylees or refugees because their employment authorization documents contain expiration dates, and employers who prefer to employ unauthorized workers or temporary visa holders rather than U.S. citizens and other workers with employment authorization.

Employers with four or more employees are prohibited from committing document abuse. Document abuse occurs when an employer requests an employee or applicant to produce a specific document, or more or different documents than are required, to establish employment eligibility or rejects valid documents that reasonably appear genuine on their face. Employers must accept any of the documents or combination of documents listed on the back of the INS Form I-9 to establish identity and employment eligibility. Examples of document abuse include requiring immigrants to present a specific document, such as a "green card" or any INS-ISSUED document, upon hire to establish employment eligibility, and refusing to accept tendered documents that appear reasonable on their face and that relate to the individual. U.S. citizens and all immigrants with employment authorization are protected from document abuse.

The antidiscrimination provisions also prohibit small employers (e.g., those with four to fourteen employees) from committing national origin discrimination against any U.S. citizen or individual with employment authorization. Larger employers are already covered by Title VII of the Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission. In addition, employers may not retaliate against workers who file a complaint, cooperate in an investigation or testify at a hearing.

Requirements
IRCA requires all farm employers to complete and retain an I-9 form for each new hire. Employees are required to complete the first section of the form and provide a document or documents that establish identity and employment eligibility. Acceptable documents are listed on the back of the I-9 form.

Employers are required to complete the second section of the I-9 form and must accept the proffered documents if they "reasonably appear to be genuine on their face" and relate to the individual. Remember, it is unlawful for an employer to practice "document abuse" by requiring prospective employees to present specific employment documents.

For purposes of completing tax documentation, employers may ask new employees for their social security cards. To avoid allegations of document abuse, the employer should do this separate and apart from the I-9 process.

To avoid potential charges of discrimination, it is recommended that employers not initiate the I-9 process until after the decision to hire has been made and communicated to the employee. Applicants should not be asked where they were born or whether they are legally entitled to work in the United States.

Subsequent to employment, an employer who has reason to believe that a fraudulent document has been presented, perhaps as a result of an INS investigation, should not terminate the employee without first discussing the allegations with him or her. Depending upon the circumstances, the employee can be given an opportunity to provide other documents or additional information for employment verification purposes.
If the I-9 form is a photocopy of an original, be sure to copy both sides of the form to provide to newly hired employees and the separate instruction page. It is good practice to retain copies of employees' eligibility documents. But if this is done, copies should be made of the documents of all employees in order to avoid charges of discrimination.

Enforcement
The Office of Special Counsel for Immigration Related Unfair Employment Practices enforces the statute prohibiting employment discrimination under IRCA, and has the responsibility for handling complaints against all employers alleging citizenship status discrimination, document abuse, retaliation and, if the employer has four to 14 employees, national origin discrimination. The Equal Employment Opportunity Commission handles national origin discrimination complaints against employers with fifteen or more employees.

Penalties
Back pay (for lost wages), instatement or reinstatement, etc., may be awarded to victims of unlawful discrimination. Penalties for discrimination range between $275 and $2,200 for each victim for the first offense, $2,200 to $5,500 for the second offense, and $3,300 to $11,000 for the third offense. Fines for document abuse range from $110 to $1,100 for each victim.

U.S. citizens and work authorized immigrants who are victims of workplace discrimination based upon immigration status, national origin discrimination or document abuse may file complaints with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at the U.S. Department of Justice. The OSC has multilingual personnel, produces educational materials in up to seven different languages, and provides language services and information in more than 100 languages via the AT&T Language Line. The OSC may be reached by telephone at 202-616-5594 and 1-800-255-7688 (toll free) or contacting the U.S. Department of Justice, Office of Special Counsel. 

 
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