DOJ Settles Two Immigration-Related Discrimination Claims

Author: Melissa A. Silver, XpertHR Legal Editor

August 16, 2013

The Department of Justice (DOJ), Office of Special Counsel resolved two actions that alleged discrimination against authorized workers during the employment verification process by their employers. Employers should ensure that hiring managers understand federal discrimination protections for workers with proper employment authorization. Specifically, employers should not show a preference for hiring and retaining certain types of authorized workers, such as those with US permanent residence or citizenship.

Forever 21 Settlement

In the first matter, the DOJ claimed that Forever 21, a clothing retailer, rejected a work-authorized individual's Department of Homeland Security-issued Employment Authorization Document (EAD). Instead, Forever 21 required the individual to produce a Permanent Resident Card, i.e. green card, as a condition of employment in violation of the Immigration and Nationality Act (INA). The individual was unable to work at Forever 21 once her EAD was rejected because she was only employment-authorized as an applicant for permanent residence.

The INA prohibits employers from discriminating in the employment eligibility verification process by requesting more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents based on an individual's citizenship status or national origin. See 8 U.S.C. §1324b(a)(6).

The settlement requires Forever 21 to do the following:

• Pay $1,705.50 in back pay to the individual;
• Pay $280 in civil penalties to the US;
• Participate in DOJ training on the INA antidiscrimination provision; and
• Be subject to monitoring of its employment eligibility verification practices for one year.

SOS Employment Group Settlement

On the same day that the DOJ announced the Forever 21 settlement, it also announced its settlement with SOS Employment Group (SOS), a staffing service based in Salt Lake City, Utah.

The settlement resolved DOJ's claims that SOS violated the INA when it engaged in discriminatory documentary practices during the employment authorization process. In particular, the DOJ investigated and confirmed "allegations made by a work-authorized individual that SOS Employment Group had, at both initial hire and when subsequently re-verifying the refugee's employment authorization, rejected the employee's valid driver's license and unrestricted Social Security card and required him to produce a Department of Homeland Security Employment Authorization Document (EAD)." The DOJ investigation also revealed that that the documentary demands made by SOS were due to the fact that he was a non-US citizen.

The agreement requires SOS to pay $9,157.50 in back pay to the individual, as well as $1,200 in civil penalties to the US. Like Forever 21, SOS will also undergo INA antidiscrimination training and will have its employment eligibility verification practices monitored for one year.