Unfair Employment Practices (UIREP) Document Abuse
Unlawful Anti-Discrimination Provisions—General Provisions
When Congress enacted IRCA 1986 it was concerned that the new law’s identity-document verification and sanctions would cause employers to discriminate against “foreign looking” U.S. citizens and legal aliens. A 1990 GAO study found that IRCA has triggered a “substantial amount” of discrimination. The GAO study found that Hispanic applicants were three times more likely to encounter unfavorable treatment, and Anglo applicants received 52% more job offers than the Hispanics.
Accordingly, part of the IRCA forbids employment discrimination based on citizenship, national origin, or immigration status.
- Employers may not treat individuals differently because they re, or are not, U.S. citizens or other work-authorized individuals. U.S. citizens, recent permanent residents, asylees, and other refugees are protected from citizenship-status discrimination.
- Employers with more than 3 and fewer than 15 employees may not treat individuals differently because of their place or birth, country of origin, ancestry, native language, or accent, or because they are perceived as looking or sounding “foreign.” U.S. citizens and all other work-authorized individuals are protected from national-origin discrimination.
- Employers may not, on the basis of citizenship status or national origin: (1) Request more or different documents than are required to verify employment eligibility and identity of other employees, or (2) Reject reasonably genuine-looking documents or specify certain documents over others.
Discriminatory documentary practices related to verifying the employment authorization and identity of employees during Form I-9 process are called document abuse. Document abuse occurs when employers treat individuals differently on the basis of national origin or citizenship status in Form I-9 process.
Document abuse can be broadly categorized into four types of conduct:
1. Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
2. Improperly requesting employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;
3. Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and,
4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce.
These practices may constitute unlawful document abuse and should be avoided when verifying employment authorization. All employment-authorized individuals are protected against this type of discrimination. The INA’s provision against document abuse covers employers with 4 or more employees.