November 09, 2023

How Diversity & Good Intentions Can Go Awry

Sadly, the world is currently caught in some significant strife. Many employers feel compassion and want to reach out to provide support and employment opportunities for non-U.S. workers. For example, a temporary, non-U.S. employee might ask the employer for regular (we won’t call it permanent) employment through an appropriate channel, like the Permanent Labor Certification Program (PERM). Even the best of intentions can go awry and create legal liability if the employer uses those channels in a way that has an adverse impact or discriminates against U.S. workers.

Race and religion aside, remember both Title VII of the Civil Rights Act of 1964 and the Immigration Reform and Control Act prohibit discrimination based on national origin and citizenship. If an employer gives preference in hiring or makes its application process, including for internal candidates, easier for non-U.S. workers, that may violate these laws.

On November 9th, the U.S. Department of Justice announced it has settled a lawsuit it filed against an employer for such activities. This was not the first time; they did so back in 2020, too. But the 2023 lawsuit resulted in a landmark settlement that is “the largest award that the department has recovered under the anti-discrimination provision of the Immigration and Nationality act (INA)” – $25 Million. Ouch.

Tip. Remember the “A” in DEIBA: Accessibility. That is commonly tied to ensure systems are accessibility to individuals with disabilities. These cases illustrate the reminder that equal access applies to everyone, including persons of any nationality or citizenship status. Ensure your employment programs, including those directed towards talent acquisition, are accessible to all candidates, regardless of any legally protected status.