I am pleased to share a post by guest blogger Tulio Suarez. A lot of you will recognize Tulio from our seminar, HR Law & Solutions, or from our more recent Executive Forum. Tulio, an attorney at Henderson Franklin, is Board Certified in immigration law. Part of his practice includes representing employers and businesses in all aspects of immigration law. He is also the lead writer of the Florida Immigration Law Blog. In this post, Tulio highlights a case involving national origin discrimination, which we thought may be of interest to our readers.
National Origin Discrimination: The Other Side of I-9 Compliance, by Tulio Suarez, Esq.
On June 19, 2012, the Justice Department announced the filing of a lawsuit against Rose Acre Farms Inc., a major U.S. egg producer based in Seymour, Ind., alleging that Rose Acre engaged in a pattern or practice of discrimination against work-authorized non-citizens in the employment eligibility verification process. According to the DOJ, Rose Acre subjected newly hired non-U.S. citizens to unauthorized demands for more, different or specific documents issued to verify their employment eligibility (i.e. document abuse, described below), while U.S. citizens were permitted to present their choice of documentation. The complaint also alleges Rose Acre purchased an electronic employment eligibility verification software system that may have prompted human resource officials to demand certain documents from non-U.S. citizens.
The Other Side of the Immigration Law Coin: National Origin Discrimination
Rose Acre serves as a good reminder that employers who run afoul of I-9 compliance laws can also put themselves at risk for national origin discrimination claims. The anti-discrimination provisions of the INA apply to employers with 4 or more employees, and prohibit four types of unlawful conduct:
· Citizenship or immigration status discrimination: disparate treatment of employees based on an employer’s real or perceived citizenship or immigration status with respect to hiring, firing, recruitment, or referral for a fee.
· National origin discrimination: disparate treatment with respect to hiring, firing, recruitment, or referral for a fee of employees based on the employee’s place of birth, country of origin, ethnicity, ancestry, native language, accent, or the perception that he or she looks or sounds “foreign”.
· Document Abuse: unfair documentary practices as part of Form I-9 process where employers treat individuals differently on the basis of national origin or citizenship status in the Form I-9 process, for the purpose or with the intent of discriminating against the individual, such as:
o Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
o Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;
o Improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them; and
o Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to present particular documents the employer does not require other employees to present.
· Retaliation: includes intimidation, threats, coercion, or other retaliation against an individual who files an immigration-related employment discrimination charge or complaint; testifies or participates in any immigration-related employment discrimination investigation, proceeding, or hearing; or otherwise asserts his or her rights under the INA’s anti-discrimination provision.
Two Lessons Can Be Learned from the Rose Acre Case
The main potential problem for Rose Acre was the purported document abuse, or Rose Acre's practice of requiring non-citizens to provide more or different documentation than citizens. If true, Rose Acre may have gone too far in its efforts to comply with I-9 requirements, and put itself at risk for a national origin discrimination claim. What can you learn from Rose Acre?
First, going over-and-above the call of duty in regard to I-9 compliance is not the answer. Instead, good I-9 compliance practices, including a clear I-9 compliance plan, is the best way to comply with both the worker identification and employment authorization verification requirements, and the national origin discrimination prohibitions of the INA.
Second, automation of the I-9 verification process is only part of the answer, not the solution. Computer systems like E-Verify and private electronic I-9 systems can lead to over-automation of the process and can serve as a facilitator of discriminatory attitude or even lead to a company I-9 policy that is discriminatory on its face.
Keep these lessons in mind as you complete I-9 documentation for all new hires. If in doubt, it is always a good idea to have your immigration attorney review your I-9 practices and plan to determine whether they are appropriate.
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professionals and business owners. At this Executive Forum, we will focus the discussion on U.S. immigration issues impacting employers, including:.jpg)
I also wanted to mention that I have some exciting things in the works for 
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E-Verify is an online system provided by the 