The Justice Department (DOJ) announced late last year that it reached a settlement with BAE Systems Ship Repair Inc., a leading provider of ship repair services, to settle allegations that its subsidiary, BAE Systems Southeast Shipyards Alabama LLC, engaged in a pattern or practice of discrimination by imposing unnecessary and additional documentary requirements on work-authorized non-U.S. citizens when establishing their eligibility to work in the United States.
DOJ alleges, based on an extensive investigation, that since at least 1 January 2009, BAE Southeast Alabama imposed different and greater requirements in the Form I-9 employment eligibility verification process on lawful permanent residents as compared to U.S. citizen employees by requiring all newly hired lawful permanent residents to present Permanent Resident Cards, commonly known as “green cards,” as a condition of employment. The investigation was initiated after BAE Southeast Alabama suspended a lawful permanent resident even though he had presented valid documents sufficient under the Immigration and Nationality Act (INA) to establish his work authorization on three separate occasions. The INA requires employers to treat all authorized workers in the same manner during the employment eligibility verification process, regardless of their national origin or citizenship status.
“Employers may not treat authorized workers differently during the employment eligibility verification process based on their citizenship status,” said Thomas E. Perez, Assistant Attorney General in charge of the Civil Rights Division. “Federal law prohibits discrimination in the employment eligibility verification process, and the Justice Department is committed to enforcing the law.”
According to the settlement agreement, BAE agreed to ensure that the employment eligibility verification policies and procedures of all its subsidiaries comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and to produce Forms I-9 for inspection for three years. BAE also agreed to pay US$53,900 to the United States. The lawful permanent resident who was suspended was previously reinstated and fully compensated by BAE.
The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the INA, which protects work authorized individuals from employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring and the employment eligibility verification (Form I-9) process.
The BAE case related to the specific requests for particular documents in the context of the I-9 Form and process. The employee has the right to show either List A or List B and List C documents to the employer for identity and employment eligibility verification. The employer cannot dictate the exact documents presented from these Lists for purposes of Form I-9 compliance.
This case does not prevent companies from determining U.S. person status and citizenship/nationality separately as part of their normal export screening process; this is consistent with our recommendation that companies have a separate export screening process, including questions and/or form separate from the I-9 process. See also the OSC 6 October 2010 opinion that states: “The anti-discrimination provision of the INA does not, however, prohibit an employer from implementing a separate and distinct verification procedure under the ITAR requiring the presentation of documents establishing citizenship or immigration status necessary to ensure compliance with the ITAR.” (emphasis in the original)