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Avoiding National Origin and Citizenship Status Discrimination in the Hiring Process

Posted December 23, 2020Articles

The Immigration and Nationality Act provides two distinct protections against discrimination:

  • Discrimination based on national origin
  • Discrimination based on citizenship status.

Violations of these protections can open an employer up to liability, with consequences ranging from civil penalties, attorney’s fees, compensatory damages, punitive damages, and other costs. The most expensive liability can be in public perception, as these violations are often well publicized.

Discrimination Based on National Origin

This protection applies to all work-authorized individuals and prohibits discrimination based on country of origin, accent, appearance, and similar features.  Examples of discrimination based on national origin include refusing to hire an applicant because of their accent or requiring specific proof of work authorization from Asians and Latino employees, but not white employees.

Discrimination Based on Citizenship Status

This protection only applies to U.S. Citizens and Nationals, Refugees, Asylees, and Recent Lawful Permanent Residents. Examples of discrimination based on citizenship status include restricting certain positions to U.S. Citizens only and effusing to hire an individual because they are a permanent resident or refugee.

Avoiding Discrimination During the Hiring Process

Paper/Application Stage

Given guidance from the Department of Justice, Meltzer Hellrung recommends asking only 2 questions of all applicants:

  • Are you authorized to work lawfully in the United States?
  • Do you now, or will you in the future, require sponsorship to work in the United States?

Employers are not required nor obligated to sponsor an applicant or employee for work authorization or permanent residency Employers are permitted to reject candidates based on a ”no” response to the first question and/or a “yes” response to the second question.  Employers who ask additional questions subject themselves to liability but are not required to ask these questions at all.

During the Interview

It is important that interviewers ask the same questions of each applicant.

Additional information about avoiding discrimination in the hiring process can be found here, including examples of the acceptable follow up questions in response to the questions above. 

Candidates will often provide information that is needed regarding their visa and immigration status when prompted. Employers can only request proof of authorization only after extending an offer. Up until the offer is made, employers must take the applicants at their words. Please note that employers cannot demand specific documents for the I-9 completion. 

To answer any questions or have your hiring materials reviewed, please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com.