Preventing Discrimination When Hiring a New Employee

In today’s diverse workforce, preventing discrimination during the hiring process is not only a legal obligation but also a critical component of fostering an inclusive and productive workplace. However, despite established laws and best practices, discrimination based on race, nationality, gender, age, and other protected characteristics can still permeate recruitment processes. Let’s explore essential strategies and guidelines to prevent discriminatory practices in hiring, focusing on both legal compliance and practical steps to ensure fair and equal treatment for all candidates.  

USCIS states that the federal law prohibits employers from discriminating against people based on several factors, including their citizenship or immigration status, or their national origin. These protections apply during the hiring, firing, recruiting, Form I-9, or E-Verify processes.  

Understanding Anti-Discrimination Obligations

Employers cannot discriminate when:  

• Hiring a new employee; 
• Verifying an employee’s authorization to work on the Form I-9;   
• Electronically confirming identity and employment authorization with E-Verify, including in the E-Verify tentative nonconfirmation (mismatch) process; or 
• Terminating a person’s employment.  

Employers also cannot retaliate against a person who:  

• Files a charge of discrimination with the Immigrant and Employee Rights Section (IER) or the Equal Employment Opportunity Commission (EEOC);  
• Participates in an investigation or prosecution of a discrimination complaint; or 
• Asserts their rights or the rights of others under anti-discrimination laws 

What are the I-9 Form Discrimination Rules? 

1. Document Choice: Employers are required to accept any valid documents from Lists A, or a combination of B, and C on Form I-9. Employers cannot specify which documents an employee should present as long as the documents satisfy the requirements. 
2. Timing of Verification: Employees must complete Form I-9 only after they’ve been accepted the job offer, and employers cannot pre-screen applicants based on perceived work authorization status. 
3. Avoiding Over-documentation: Employers should avoid asking employees for additional documents or more information than is required. This is called “over-documentation” and can constitute discrimination. 
4. All employees, regardless of national origin or citizenship, must be treated equally in completing Form I-9. Procedures must be the same for every new hire. 

USCIS’ Types of Discrimination

Best Practices for IER Compliance

To ensure adherence to all Immigrant and Employee Rights (IER) guidelines, a company should implement a proactive approach that combines education, structured processes, and regular monitoring.  

1. Educate Staff on IER Regulations: Conduct regular training for HR staff and hiring managers on IER guidelines, focusing on anti-discrimination practices in hiring, Form I-9 completion, and E-Verify use. Training should cover topics like document verification and the lawful handling of work authorization. 
2. Standardize Hiring and Verification Processes: Develop and enforce clear, standardized procedures for all steps of the hiring process, from recruiting to onboarding, to avoid inconsistencies. This includes having a consistent checklist for Form I-9 completion and using E-Verify uniformly across all new hires. 
3. Conduct Internal Audits: Regularly review hiring and employment verification practices to identify potential areas of non-compliance. Audits can help catch and correct issues, such as over-documentation requests or selective verification, before they become larger compliance risks. 
4. Ensure Accessible Reporting Channels: Establish a clear, accessible process for employees to report any perceived discrimination or unfair practices without fear of retaliation. Anonymized reporting options can help encourage transparency. 
5. Consult with Legal and Compliance Experts: Periodically consult with legal experts or compliance advisors to stay updated on changes to IER guidelines and best practices, adapting processes as necessary.