DISCRIMINATION BASED ON RACE, NATIONAL ORIGIN, AND CITIZENSHIP

The original purpose of the Civil Rights Act of 1964 was to address race discrimination. This area continues to be important today, and employers must be aware of practices that may be discriminatory on the basis of race. Further, the EEOC and the affirmative action requirements of the Office of Federal Contract Compliance Programs (OFCCP) specifically designate race as an area for investigation and reporting.

Race is often a factor in discrimination on the basis of national origin. What are the rights of people from other countries, especially those illegally in the United States, with regard to employment and equality? Illegal aliens often are

called undocumented workers because they do not have the appropriate permits and documents from the Immigration and Naturalization Service. The passage of the Immigration Reform and Control Acts (IRCA) and later revisions to it have clarified issues regarding employment of immigrants.

Immigration Reform and Control Acts (IRCA)

To deal with problems arising from the continued flow of immigrants to the United States, the IRCA was passed in 1986 and has been revised in later years. The IRCA makes it illegal for an employer to discriminate in recruiting, hiring, or terminating based on an individual’s national origin or citizenship. Many employers were avoiding the recruitment and hiring of individuals who were “foreign looking” or who spoke with an accent, fearing they might be undocumented workers. Hispanic leaders voiced concern about the discriminatory effects of this practice on Hispanic Americans.

A revision of the act attempted to address this issue by prohibiting employers from using disparate treatment, such as requiring more documentation from some prospective employees than from others. In addition, the IRCA requires

that employers who knowingly hire illegal aliens be penalized.

HIGH-TECHNOLOGY AND SKILLED WORKER VISAS

Recent revisions to the IRCA changed some of the restrictions on the entry of immigrants to work in U.S. organizations, particularly those organizations with high-technology and other “scarce-skill” areas. The number of immigrants allowed legal entry was increased, and categories for entry visas were revised. As the HR Perspective indicates, foreignlanguage skills have created issues with many employers.

EMPLOYER DOCUMENTATION REQUIREMENTS

Under the acts just described, employers are required to examine identification documents for new employees, who also must sign verification forms about their eligibility to work legally in the United States. Employers must ask for proof of identity, such as a driver’s license with a picture, Social Security card, birth certificate, immigration permit, or other documents..

Conviction and Arrest Records

Court decisions consistently have ruled that using records of arrests, rather than records of convictions, has a disparate impact on some racial and ethnic minority groups protected by Title VII. An arrest, unlike a conviction, does not imply guilt. Statistics indicate that in some geographic areas, more members of some minority groups are arrested than nonminorities.

Generally, courts have held that conviction records may be used in determining

employability if the offense is job related. For example, a bank could use an applicant’s conviction for embezzlement as a valid basis for rejection. Some courts have held that only job-related convictions occurring within the most recent five to seven years may be considered. Consequently, employers inquiring about convictions often add a phrase such as “indication of a conviction will not be an absolute bar to employment.”