The Immigration Reform and Control Act of 1986 (IRCA) prohibited certain discriminatory immigration-related employment practices because of a person's citizenship or national origin. In 1990 Congress added a new provision prohibiting certain discriminatory documentary practices during the employment eligibility verification process (also called the Form I-9 process). In 1996 Congress further amended the 1990 provision by stating that certain documentary practices were unlawful only if done "for the purpose or with the intent of discriminating against an individual" in certain situations because of the individual's citizenship or national origin. The Department of Justice (DOJ) issued a notice of proposed rulemaking on August 15, 2016 describing possible changes in the way DOJ will interpret and enforce the governing laws. Comments on the proposed regulations must be submitted on or before October 14, 2016.
The proposed rules provide new definitions that ignore existing law and make proving a case of discrimination much easier. For example, "discriminate" means the act of intentionally treating an individual differently, regardless of the explanation for the discrimination and regardless of whether the different treatment is because of animus or hostility. The phrase "for purposes of satisfying the requirements of section 1324a(b)" (which refers only to the Form I-9 process) will be interpreted to include the E-Verify process. Also, the phrase "for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)" is proven if the individual is treated differently because of citizenship or national origin regardless of the explanation for the discrimination and regardless of whether it is based on animus or hostility. In another departure from the current statute, the proposed rules interpret the prohibition against asking for "more or different documents than are required under such section" to include making a request for specific documents because of a person's citizenship or national origin.
DOJ admits that the proposed rules impose new requirements that employers will need to learn. In addition, DOJ anticipates that employers will need to review and revise their hiring and employment eligibility verification policies. DOJ even contemplates providing as many as three training webinars per month to assist employers, employees, and attorneys in understanding the changes resulting from the new requirements.
Although the proposed rules are not final and binding and are not consistent with the applicable law, the proposed rules reflect the positions DOJ has taken during the Obama administration on these issues. Accordingly, employers should consider whether to review and revise hiring and employment eligibility verification practices.
