DOJ Strengthens Protections Against Employment Verification Discrimination

A less explicit or noticeable form of discrimination is often encountered by employees during employment verification. For example, if an employer asks a minority applicant, or a transgender applicant, for an inordinate number of documents, and far more than are legally required for the position, this action may establish a prima facie case of discrimination.

Other examples include:

  • You request that an employee present a particular document, such as a green card, to establish identity and/or employment authorization;
  • You reject documents that reasonably appear to be genuine and relate to the employee presenting them;
  • You treat groups of applicants differently. For example, you require employees with a Hispanic background to present particular documents, but you do not require other employees to present such additional documents;

These tactics constitute employment verification discrimination.

DOJ Weighs In and Helps Employees

The Department of Justice (“DOJ”) recently issued a new regulation that clarified the treatment of a worker, when he or she has been requested to produce documents during the employment verification process. According to the regulation, employers could be found to have committed discrimination, regardless of whether the intent is to harm or help.

The DOJ has strengthened its rule by redefining what constitutes “discrimination,” in the Immigration and Nationality Act. The new definition defines discrimination as “the act of intentionally treating an individual differently from other individuals because of national origin, or citizenship status, regardless of the explanation for such differential treatment, and regardless of whether such treatment is because of animus or hostility.”

The new rule also strengthens the prohibition on discrimination, based on national origin or citizenship beyond the established I-9 process. The rule will now apply to the E-Verify process and even to onboarding. Prior to this revision, the DOJ could not effectively pursue charges against employers if hiring practices were considered discriminatory, but not carried out with intent to harm, according to the Society for Human Resources Management.

What To Do If You Suspect You Were the Victim of Discrimination

If you believe you were the victim of employment verification discrimination, on the basis of your national origin, you need to file a complaint with the Office of Special Counsel (“OSC”). In many other employment discrimination matters, the Equal Employment Opportunity Commission (“EEOC”) is the primary federal agency tasked with investigating such claims. However, the OSC shares jurisdiction over national origin discrimination charges with the EEOC. The two agencies divide complaints based on the size of the employer. The EEOC handles complaints involving employers with more than fifteen employees while the OSC handles complaints involving employers with between three and fourteen employees. In addition, the OSC exclusively handles citizenship or immigration status discrimination claims against all employers with more than four employees. The types of employees protected from citizenship or immigration status discrimination include U.S. citizens, permanent alien residents, temporary alien residents, refugees, and applicants who are listed as seeking asylum.

Fort Lauderdale Discrimination Attorney

The complaint process with the EEOC and/or the OSC can become quite complex. That is why it makes sense to retain an experienced workplace discrimination attorney. The South Florida law firm of Mark J. Berkowitz is here to help. We offer a wide range of legal services, such as in office consultations, negotiation, participation in mediation and the prosecution of formal litigation. Our Fort Lauderdale Office has handled numerous claims of discrimination and harassment in state and federal courts throughout Florida. Contact our office today.


Changes to Employment Verification Discrimination Rule Take Effect Jan. 18

Revised Employment Verification Regulations Take Effect on January 18, 2017