E-Verify Discrimination: Uniform Application To All Employees Required

The U.S. Department of Justice (DOJ) recently settled its claim against Bianchi Home Care Inc. (Bianchi), a home care provider based in Washington.

The settlement resolves the DOJ's claim that Bianchi violated the Immigration and Nationality Act (INA) when it discriminated against non-U.S. citizens through its use of the federally-provided E-Verify tool.

Administered by the Department of Homeland Security, E-Verify is an electronic program that enables enrolled employers to confirm that their employees have permission to work in the United States. However, a DOJ representative reminded employers that they "cannot use E-Verify to discriminate against employees because of their citizenship or immigration status."

Based on the DOJ's investigation, Bianchi only used E-Verify to confirm the permission to work of its potential non-U.S. citizen employees and did not use the program for its potential U.S. citizen employees.

Although the E-Verify tool found that all of Bianchi's non-U.S. citizen employees had permission to work, by only subjecting non-U.S. citizens - but not also U.S. citizens - to E-Verify, Bianchi imposed an additional burden on a group of applicants in the hiring process because of their citizenship or immigration status. Under the INA and the E-Verify program rules, employers cannot discriminate in their use of E-Verify based on citizenship or immigration status.

The settlement prohibits Bianchi from selectively using E-Verify to discriminate against employees based on their citizenship or immigration status. Additionally, Bianchi must train its employees on the requirements of the INA's anti-discrimination provision, change its policies and procedures, and be subject to monitoring for three years. "Justice Department Settles E-Verify Discrimination Claims Against Washington State-Based Home Care Provider" www.justice.gov (Mar. 16, 2022).

Commentary

Even government-issued tools designed to assist employers to comply with the law can be misapplied, resulting in acts of discrimination, whether intentional or inadvertent. In the workplace, rules that are non-discriminatory on their face, if not applied uniformly, can result in workplace discrimination, and subject an unwary employer to state or federal investigations that could lead to significant fines and costs.

Most employers already have in place policies designed to prevent acts of overt workplace discrimination based on protected classes such as race, gender, or national origin. However, employers should also be aware of other types of discrimination in the workplace, such as immigration status discrimination.

A prudent employer will regularly review its policies to determine their impact on protected classes and will ensure that adequate training on the use and application of those policies is conducted.

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