The Department of Justice recently announced a settlement agreement with a home care provider based in Washington State. The settlement resolves claims that the company engaged in discriminatory practices against noncitizens through its E-Verify practices. The announcement underscores the severe consequences of violating the anti-discrimination provisions of the Immigration and Nationality Act (“INA”).

Allegations of Discrimination Against Noncitizens

According to the Department of Justice, an investigation into the Washington-based company revealed the company discriminated against noncitizens through its use of the E-Verify system, an electronic program that enables enrolled employers to confirm their employees’ permission to work in the United States. Government officials determined the company utilized the E-Verify system to confirm it subjected only noncitizens to E-Verify and did not utilize the program for its U.S. citizen employees. Accordingly, the company imposed an additional burden on noncitizens during the hiring process. The imposition of such a burden on noncitizens constitutes unlawful discrimination under the INA.

Under the settlement agreement, the company cannot continue to selectively use E-Verify based on citizenship or immigration status. Additionally, the company must train its employees on the anti-discrimination provisions of the INA. Finally, the company is now subject to a three-year period of governmental monitoring to prevent future violations of the law.

Anti-Discrimination Under the Immigration & Nationality Act

The anti-discrimination provisions of the INA can be found at 8 U.S.C § 1324(b) and its associated regulations at 28 C.F.R. Part 44. These provisions prohibit discrimination based on citizenship status and national origin in the hiring, firing, recruitment, and referral of workers for a fee. The provisions also outlaw unfair documentary practices, such as the one involved in this case. Finally, these laws make it illegal to retaliate against or intimidate protected persons who file a discrimination-related complaint against the employer. Failure to comply with these laws can result in prosecution, leading to civil penalties and other sanctions.

The DOJ Civil Rights Division’s Immigrant and Employee Rights Section (“IER”) enforces the anti-discrimination provisions of the INA, and under the Biden administration, enforcement has been steady. According to Assistant Attorney General Kristen Clarke of the Civil Rights Division, “[e]mployers cannot use E-Verify to discriminate against employees because of their citizenship or immigration status.” She added, “[t]he Civil Rights Division is committed to protecting workers from unlawful citizenship discrimination and removing discriminatory barriers from all stages of the hiring process.”

DOJ Enforcement of Discrimination Claims

The Biden administration continues its focus on enforcement of the anti-discrimination provisions of the INA to protect vulnerable noncitizen employees from unfair and illegal practices. Accordingly, it is imperative that employers consider the legal consequences of their policies, exercise the utmost care in implementing their hiring practices, and ensure compliance with immigration law.