Following recent DOJ action against employers in the Georgia Tech job posting debacle, employers should review their job postings to avoid possible IRCA citizenship discrimination liability, and take three steps to reduce their exposure.
Unaware Employers Posted Jobs on Georgia Tech Job Website
Employers posted open positions on the job web site administered by Georgia Tech. As part of the posting process, employers filled out forms asking questions about the positions, including relating to whether the job applicants have or will in the future have employment authorization, or work permits that expired in the future or whether the job applicants would need a sponsorship in the future. In addition, The Georgia Tech website blocked student applicants from seeing job postings based on information received from the registrar's office of their citizenship status. DOJ found that asking such questions violated Immigration Control and Reform Act (IRCA) because it discourages applicants who are currently authorized to work from applying for jobs containing such language. Per Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division, practices like this violate the anti-discrimination provision of the Immigration and Nationality Act... "Our nation’s higher education institutions must ensure that their job recruiting platforms don’t promote, facilitate or enable unlawful citizenship discrimination."
Affected Companies and High Fines
In addition to Georgia Tech reaching a $500,000 settlement with DOJ as a result of this investigation, 30 employers were also penalized, in three waves of investigations: 1st, 2nd, and 3rd. DOJ imposed millions of dollars in fines on the employers, ranging from $29,000 (American Express) to $306,000 (KPMG) to $459,000 (Cox Communications) Affected businesses include, among others, employers with robust HR and legal departments, such as KPMG LLP, Asurion LLC, Black & Veach Corporation, Deluxe Corporation, Freese & Nichols Inc, Grey Orange Inc, Honeywell International Inc, Procter & Gamble, Georgia Tech Research Institute, Stryker Employment Company LLC, Wiley Bros, CarMax, Axis Analytics, Capital One Bank, Walmart, Keyot LLC, Area-I, Inc, Cap Tech, Akuna Capital, American Express Company, Sealed Air Corporation, Clarkston-Potomac Group, Toast, Inc, Blackbaud, Clay Electric Cooperative, Inc, CONMED, Edward Jones Investments, KNAPP Inc, Cox Communications, SimpleNexus, LLC, and the Royster Group, Inc.
In addition to paying a $500,000 fine, Georgia Tech agreed to change the "discriminatory structure" of their career website, and also agreed to ensure that all employees complete training to correct the these practices.
IRCA Prohibited Conduct: Employment Related Citizenship Discrimination Interpreted Broadly
Per DOJ's settlement agreement with Capital One: employers " directly or through a third-party entity or an electronic platform, shall not... discriminate on the basis of citizenship status, immigration status, or national origin in violation of 8 U.S.C. §1324b, including not discriminating in recruiting, referring job applicants, hiring, or firing on the basis of citizenship status, immigration status, or national origin except as required to comply with a law." Employers may not "reference any specific citizenship status, immigration status... in the job advertisement," and they may not "intimidate, threaten, coerce, or retaliate against any person" in violation of the anti-discrimination provision.
With DOJ currently interpreting IRCA provisions on citizenship discrimination broadly, employers should take note and change their practices.
What Should Employers Do: Take Three Steps
First, employers should train their recruiters and HR professionals to recognize IRCA citizenship discrimination, not to use language such as "will you in the future require work authorization" or "do you require visa sponsorship" in job postings and any other part of the recruitment process.
Second, they should train their recruiters and HR personnel not to use services that make similar discriminatory practices.
Third, employers should conduct an audit of their current job postings for possible discriminatory language.
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