Page 40 - Handbook for Employers - Guidance for Completing Form I-9

National Origin Discrimination more than three and less than 15 employees.

National origin discrimination under the INA occurs
when an employer treats individuals differently based Avoiding Discrimination in Recruiting, Hiring,
on their national origin with respect to hiring, firing, and the Form I-9 Process
recruitment, or referral for a fee. An individual’s national
origin relates to the individual’s place of birth, country In practice, you should treat individuals equally when
of origin, ethnicity, ancestry, native language, accent, or recruiting and hiring, and when verifying employment
the perception that they look or sound “foreign.” The authorization and identity during the Form I-9 process.
INA’s national origin discrimination prohibition generally
covers employers with more than three and less than You should not:
15 employees and covers all employment-authorized
individuals. EEOC has jurisdiction over national origin 1. Have different rules or requirements
claims involving employers with 15 or more employees, for individuals because of their national
regardless of the work authorization status of the origin, citizenship, or immigration status.
discrimination victims. For example, you cannot demand that non-
U.S. citizens present DHS issued documents.
Retaliation Each individual must be allowed to choose
the documents that they will present from
An employer or other covered entity cannot the lists of acceptable Form I-9 documents.
intimidate, threaten, coerce, or otherwise retaliate For example, both citizens and employment-
against an individual because the individual has filed authorized individuals may present a driver’s
an immigration-related employment discrimination license (List B) and an unrestricted Social Security
charge or complaint; has testified or participated in any card (List C) to establish identity and
IER investigation, proceeding, or hearing; or otherwise employment authorization. However, you must
asserts his, her, or other’s rights under the INA’s anti- reject documents that do not reasonably appear
discrimination provision. to be genuine or to relate to the individual
presenting them.
Types of Discrimination Prohibited by Title VII and 2. Request to see employment eligibility verification
Other Federal Anti-discrimination Laws
documents before hire and completion of
Form I-9 because an individual looks or sounds
As noted above, Title VII and other federal laws also “foreign,” or because the individual states that
prohibit employment discrimination on the basis of they are not a U .S. citizen.
national origin, as well as race, color, religion, sex, age,
disability and genetic information. These laws also protect 3. Refuse to accept a document, or refuse to hire
workers from retaliation. EEOC has jurisdiction over an individual, because a document has a future
employers that employ 15 or more employees for expiration date.
20 or more weeks in the preceding or current calendar 4. Request specific documents from individuals to
year, and prohibits discrimination in any aspect of run an E-Verify case or based on an E-Verify
employment, including: hiring and firing; compensation, tentative nonconfirmation.
assignment, or classification of employees; transfer,
promotion, layoff, or recall; job advertisements; 5. Request that an individual run a Self Check case
recruitment; testing; use of company facilities; training and/or present documents showing the
and apprenticeship programs; fringe benefits; pay, individual cleared Self Check.
retirement plans, and leave; or other terms and conditions 6. Request that an employee who presented an
of employment. unexpired Permanent Resident Card present a
new document when the Permanent Resident
IER and EEOC share jurisdiction over national origin Card expires.
discrimination charges. EEOC investigates national 7. Request that, during reverification, an
origin discrimination claims against employers with 15 employee present a new unexpired Employment
or more employees, and IER investigates national origin Authorization Document (Form I-766) if
discrimination claims against smaller employers with they presented one during initial verification. For

36