11.2 Types of Employment Discrimination Prohibited Under the INA

Unfair Documentary Practices

The INA prohibits you from committing unfair documentary practices, which means discriminating when you verify someone’s identity and employment authorization (generally, the Form I-9 and E-Verify processes). Unfair documentary practices generally occur when employers treat individuals differently on the basis of national origin, citizenship or immigration status in the Form I-9 or E-Verify process, or any other process an employer may use to verify employment eligibility. This can be broadly categorized into three types of unlawful conduct:

• Requesting that someone produce more or different documents than are required by Form I-9 to establish their identity and employment authorization;
• Requesting that someone present a particular document, such as a Form I-551, Permanent Resident Card, to establish identity and/or employment authorization; and
• Rejecting documents that reasonably appear to be genuine and to relate to the person presenting them.

These practices may constitute unfair documentary practices if they are committed based on citizenship, immigration status, or national origin.

Citizenship Status Discrimination

Citizenship or immigration status discrimination occurs when an employer treats someone differently when hiring, firing, or recruiting because of the person’ real or perceived citizenship or immigration status. The INA prohibits this type of discrimination if the employer has four or more employees. Asylees, refugees, recent lawful permanent residents, U.S. citizens and U.S. nationals are protected from this type of discrimination.

Note: There are limited situations where an employer can take an individual’s citizenship or immigration status into account, such as when a law, executive order, regulation, or government contract requires employers to limit a position to a particular citizenship status. This is rare and doesn’t apply to the vast majority of jobs.

National Origin Discrimination

National origin discrimination generally occurs when an employer treats someone differently when hiring, firing, or recruiting because of the person’s national origin. A person’s national origin can relate to many things, such as place of birth, country of origin, ethnicity, ancestry, native language, accent, or the perception that they look or sound “foreign.” The INA’s national origin discrimination prohibition, enforced by IER, generally covers employers with 4 to 14 employees and protects all employment-authorized individuals. The EEOC generally has jurisdiction over national origin claims involving employers with 15 or more employees, regardless of the work authorization status of the discrimination victims. The EEOC also covers discrimination in other aspects of employment, including terms or conditions.

Retaliation

An employer or other covered entity cannot intimidate, threaten, coerce, or otherwise retaliate against a person because that person has engaged in protected activity, such as when someone:

• Files a charge (a formal complaint) with IER;
• Participates in an IER investigation or lawsuit;
• Opposes action that may be discrimination under the INA; or
• Asserts another person’s rights under the INA’s anti-discrimination provisions.

You can find more information on how to avoid discrimination at www.justice.gov/IER.