According to a recent announcement from the Department of Justice (“DOJ”), Giant Food, a Pennsylvania-based grocery store chain, has settled allegations of discrimination against noncitizen workers. The announcement underscores the significance of ensuring compliance with the Immigration and Nationality Act (the “INA”) and the severe consequences of failing to do so.
Allegations of Discrimination Against Noncitizen Workers
According to the DOJ, an investigation was begun following allegations that the company refused to accept valid documentation to establish a noncitizen worker’s eligibility to work in the United States. The investigation uncovered company practices of routinely requiring specific documents from noncitizen workers that were not required from citizen workers. Specifically, noncitizens were required to show lawful permanent resident cards (“green cards”) to establish work authorization. When a noncitizen worker refused to provide a green card, the company refused to let the individual begin work. At the same time, the company allowed United States citizens to choose from the list of acceptable documents pursuant to Form I-9, which is discussed below. Accordingly, the company imposed an additional burden on noncitizens during the onboarding process. The imposition of such a burden on noncitizens constitutes unlawful discrimination under the INA.
Under the terms of the settlement agreement, the company will pay an undisclosed civil penalty, train their staff on the anti-discrimination provisions of the INA, and review and update their employment policies. Additionally, the company will be subject to a three-year monitoring period to ensure ongoing compliance with the INA’s anti-discrimination laws.
I-9 Verification Process
Form I-9, Employment Eligibility Verification, is a standardized form used by United States Citizenship and Immigration Services (“USCIS”) for employment verification in the United States. Mandated by the Immigration Reform and Control Act of 1986, Form I-9 is used to verify the identity and legal authorization of all employees who work in the United States. During the I-9 process, the employee must provide their employer with documentation that proves their legal status to work in the United States.
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 of the INA prohibit discrimination based on citizenship status and national origin in the hiring, firing, recruitment, and referral of workers for a fee. Further, they outlaw unfair documentary practices, such as the one involved in this case. And finally, they make it illegal to retaliate 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. Under the Biden administration, enforcement of these laws has been steady. In the DOJ announcement of the settlement with Giant Food, Assistant Attorney General Kristen Clarke of the DOJ Civil Rights Division explained, “[e]mployers cannot discriminate against employees because of their citizenship, immigration status[,] or national origin when verifying their permission to work. The Justice Department will continue to ensure that workers do not face unlawful discrimination when proving their permission to work in the United States.”
Continued 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. The Giant Food settlement is one of many settlements recently announced by the DOJ in their ongoing effort to monitor the compliance of employers hiring noncitizen workers. Accordingly, the importance of compliance with immigration law remains critical for employers in the United States.