Justice Department Sues Arizona Community College District for Discrimination during the I-9 Process

The US Department of Justice has filed a lawsuit against the Maricopa County Community College District, alleging a pattern or practice of discrimination during the Form I-9 process. According to the Washington Post, the DOJ is accusing the Arizona-based community college district of routinely requesting additional documents (beyond what is required on the I-9) to verify the work authorization of non-citizen job applicants. The DOJ is also requesting that the community college district pay a hefty fine of over $270,000 ($1,100 for each of the 247 non-citizen job applicants who were subjected to the alleged discrimination). According to the lawsuit, filed with theExecutive Office for Immigration Review, Office of the Chief Administrative Hearing Officer, the DOJ began their investigation after receiving a complaint from a lawful permanent resident who had been denied a part-time math teaching position at a community college because he could not produce his green card. The suit alleges that the applicant had presented a valid California driver’s license, social security card, and DHS-issued document confirming his permanent residence status (thus meeting the List B and List C requirements of the Form I-9). The college then asked him to complete a non-U.S. citizen employee tax data form, and to provide a permanent resident card (I-551). When he questioned the validity of the request and was unable to produce the green card, the job offer was subsequently rescinded. The DOJ’s 18-month investigation found that this was a routine practice at the community college district, and the lawsuit was born. As previously reported, the anti-discrimination provision of the Immigration and Nationality Act prohibits unfair documentary practices (known as document abuse), which occurs when employers treat individuals differently on the basis of national origin or citizenship status in the I-9 process. Document abuse covers four types of prohibited practice (most of which are implicated by our facts above):

1. Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;

2. Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;

3. Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and

4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce.

Although it’s likely that the community college will enter into a much smaller settlement agreement with the DOJ (see several such agreements here), the damage to their reputation cannot be undone. To prevent such media nightmares, employers should implement training programs on proper I-9 procedure and take steps to avoid immigration-related unfair employment practices.  In addition, employers should strongly consider adopting an electronic I-9 systemwhich programatically prevents over-documentation (e.g., if employee presents DL and SS card, employer cannot then also choose a green card on the electronic I-9). While this system alone will not necessarily prevent what happened in this case, it can be used as a great educational tool along with solid training and policies.