Discrimination Enforcement on the Rise

The Department of Justice, through its Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), has filed a complaint against the University of California, San Diego Medical Center alleging unfair documentary practices. Commonly referred to as “document abuse,” the law prohibits employers from requesting more or different documents than required to verify employment eligibility, rejecting reasonably genuine-looking documents, or specifying certain documents over others with the purpose of discriminating on the basis of citizenship status or national origin. The complaint, which was filed on December 6, 2011 with the Office of the Chief Administrative Hearing Officer (OCAHO), alleges that the Medical Center discriminated in the employment eligibility verification (or “I-9”) process by requiring newly-hired non-U.S. citizens to present only Department of Homeland Security (DHS)-issued List A documents and by re-verifying lawful permanent residents’ status upon expiration of their “green cards.” The complaint seeks a court order prohibiting future discrimination by the Medical Center, monetary damages for any individuals harmed by its actions, and civil penalties.

In another recent anti-discrimination case, Eze v. West County Transportation Agency, OCAHO focused on the discriminatory impact of certain citizenship language in an employment application. The questionnaire asked: “Upon employment, can you furnish proof of citizenship?” This question was followed by a short line for the applicant to write in a response, below which appeared the words, “yes or no.” OCAHO held that this question in the employment application was facially discriminatory because it divided employment applications into two classifications based on whether the applicant was a U.S. citizen or a non-U.S. citizen. Noting that OCAHO cases have long held that it is the entire selection process, not just the hiring decision alone, which must be considered in order to ensure that there are no unlawful impediments to opportunities for employment, OCAHO granted injunctive relief to ensure that the artificial barrier to potential non-citizen employment applicants was eliminated from the defendant’s employee screening process.

The OSC vigorously investigates and prosecutes claims of discrimination, and employers found to be engaging in discriminatory activity may be required to pay civil penalties and any appropriate back pay to injured parties. When reviewing or evaluating compliance programs, it is essential that companies examine their hiring policies and practices to avoid discrimination and proactively discuss compliance with experienced legal counsel.