DOJ Discusses Efforts To Prosecute Discrimination

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By Amber McKinney  

The primary role of the Justice Department's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is to “ensure that employers don't go too far” and end up discriminating when verifying the work authorization of employees, OSC Trial Attorney Erik Lang said during a Dec. 6 webinar.

The webinar, timed to coincide with the 25th anniversary of the passage of the Immigration Reform and Control Act, which created OSC, was designed to provide workers and their advocates with an overview of OSC's work to investigate and prosecute immigration-related employment discrimination.

In fiscal year 2011, OSC conducted 231 investigations, resulting in 194 workers regaining their jobs, Lang said.

Cases Often Charge-Based

OSC “operates a lot like the Equal Employment Opportunity Commission,” both initiating investigations on its own and taking “charge-based” cases that are filed by injured parties, Lang said.

Lang said it is most common for OSC to take cases based on charges filed with the office by an impacted worker. The charge must be filed within 180 days of the alleged discrimination, he added.

Once a case is taken by OSC, the office can seek a variety of remedies, including having the employee hired or rehired, back pay, injunctive relief, and civil penalties, OSC Trial Attorney Jenny Deines said.

Lang discussed the four types of discrimination prohibited under the Immigration and Nationality Act's anti-discrimination provision—citizenship or immigration status, national origin, document abuse, and retaliation or intimidation.

Citizenship status discrimination occurs when an employee is treated differently based on his or her citizenship status, and employers with more than three workers are covered under the statute, Lang said.

OSC can investigate discrimination of this type on behalf of U.S. citizens, recent legal permanent residents, and asylees and refugees. However, the agency cannot intercede on behalf of legal permanent residents who have not applied for naturalization within six months of eligibility, undocumented workers, or nonimmigrant visa holders such as H-1B workers, he said.

Lang gave several examples of conduct that is prohibited, such as U.S. citizen-only hiring policies, knowingly preferring to employ undocumented workers, or preferring to hire H-1B, H-2B, or H-2A visa holders when qualified U.S. workers are available.

Recently, Lang said, OSC settled a case against the American Academy of Pediatrics that alleged that the organization posted employment opportunities for doctors, nurses, and other professionals on its website that specified that only U.S. citizens and certain visa holders could apply.

National Origin Issues

Lang said OSC handles national origin discrimination cases only in the context of hiring and firing.

Employers with between four and 14 employees are within OSC's jurisdiction, while EEOC handles cases involving companies with more than 14 employees, he said. In addition, OSC cannot intercede on behalf of any undocumented worker, he added.

Lang said the best advice for employers is to hire based on an applicant's qualifications, and to not treat any employee or applicant differently based on things like a foreign accent.

Document Abuse Common

One very common form of discrimination investigated by OSC is document abuse, Lang said.

When an employee fills out the Form I-9, they have the choice of what document or combination of documents to present to an employer. “Employers often get into trouble when they require more or different documents, or even when they restrict what they will accept from certain applicants,” he said.

Lang said an example is the OSC case against Farmland Foods Inc., a Missouri-based pork producer. In August, the company agreed to pay $290,000 to settle allegations that in the case of non-U.S. citizens Farmland required the presentation of a specific work-authorization document issued by the Department of Homeland Security, such as a permanent-resident card or an employment-authorization document, rather than allowing the employee to choose a document from the list of acceptable documents on the Form I-9.

According to Lang, OSC also investigates instances when a worker is retaliated against after filing a charge with OSC or cooperating with an OSC investigation.

By Amber McKinney  


Additional information about the OSC webinar series may be accessed at http://www.justice.gov/crt/about/osc/webinars.php .