EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII/National Origin Discrimination/Immigration Issues
August 14, 2006
Mr. Richard A. Sloan
Regulatory Management Division
U.S. Citizenship and Immigration Services
Department of Homeland Security
111 Massachusetts Ave., N.W., 2nd Floor
Washington, D.C. 20529
Re: Proposed Rule: Safe-Harbor Procedures for Employers Who Receive a No-Match Letter (DHA Docket No. ICEB – 2006 - 0004)
Dear Director Sloan:
On behalf of the Equal Employment Opportunity Commission (EEOC or Commission), we are submitting the following comment in response to the proposed rule published on June 14, 2006 (71 Fed. Reg. 34,281). In the proposed rule, the Bureau of Immigration and Customs Enforcement (ICE or the Bureau), Department of Homeland Security (DHS or the Department), solicited public input about a set of procedures governing an employer’s actions when the Social Security Administration (SSA) or ICE send it a “no-match” letter.
As the proposed rule notes, a no-match letter from SSA advises an employer that a name and social security number do not match SSA records.1 A no-match letter from ICE similarly advises an employer that the Bureau was unable to confirm the validity of information concerning an employee following an onsite audit of the employer’s Employment Eligibility Verification (I-9) forms. In the preamble to the proposed rule, ICE requested comments on whether and, if so, how to amend the “safe-harbor” provisions that allow an employer to respond to the no-match letter, receive the appropriate verification of entitlement to work, and avoid being found to have constructive knowledge that it was employing an unauthorized alien, even if the employee in fact was not permitted to work in the U.S.2
The EEOC is the federal agency responsible for enforcing all federal equal employment opportunity (EEO) laws3 and further, is specifically charged with coordinating and leading the federal government’s effort to eradicate workplace discrimination.4 Workers employed in the United States are protected from employment discrimination regardless of citizenship or work authorization status.5 Citizenship requirements must be enforced evenhandedly and the employer must avoid singling out an individual or group based on national origin.6
Comments on the Proposed Rule
The EEOC is concerned that absence of clear and explicit guidance in the safe-harbor procedure, along with a 60-day time limit, may create circumstances in which employers have incentives to take actions that violate Title VII and/or IRCA’s applicable nondiscriminatory provisions.7 The safe-harbor procedure is designed to provide an employer with a defense in a case alleging constructive knowledge about employment of unauthorized aliens. 8 If the safe-harbor procedure remains ambiguous, the EEOC is concerned that an employer, once found not to have complied with the safe harbor process, may decide simply to terminate employees upon receipt of no-match letters for reasons that may violate Title VII’s prohibition against national origin discrimination. The EEOC strongly believes that the “safe-harbor” procedure will only work when the Department adopts a thorough step-by-step procedure that allows employers to act affirmatively after receiving a no-match letter without exposing them to unwarranted liability under the EEO laws. The proposed rule, in our view, does not provide the necessary clarity.
For example, the proposed rule first assures the employer that following the described procedure “will” protect them against liability, but further states “such steps may include” a series of considerations. 9 The preamble to the safe-harbor proposal further states that “there may be other procedures a particular employer could follow” but “[a]n employer that follow[s] a procedure other than the ‘safe-harbor’ procedure described in the regulation would face the risk that DHS may not agree.”10 Use of terms such as “may” and “could” create uncertainty; and an employer uncertain about what “may” or must be done, could seek to remedy no-match letters by engaging in practices that discriminate against individuals based on their national origin.
The EEOC also is concerned that the 60-day time period within which the employee is responsible for resolving the issues raised in a no-match is insufficient and urges DHS to expand the time frame to, at a minimum, 90 days.11 Employees seeking to resolve a no-match letter will need to collect, organize, deliver documentation, and perhaps meet with the relevant federal agency and/or seek legal advice while maintaining their regular work hours. Expanding the timeframe will better enable the employee to resolve discrepancies and minimize the possibility of termination.
Finally, the EEOC urges the Department to include a statement in either the preamble or the rule reminding employers that any employment practice adversely affecting employees on the basis of race/color, physical appearance, accent, religion, or any other foreign characteristic that potentially denotes immigrant status, may violate applicable anti-discrimination laws.12
If you have further questions or would like to discuss this matter, please feel free to call Carol R. Miaskoff, Assistant Legal Counsel, at 202-663-4645.
Peggy R. Mastroianni
Associate Legal Counsel
1 Employers annually send the SSA millions of earning reports (W-2 forms) in which employee names and social security numbers do not match SSA records. In some cases, SSA responds with a no-match letter.
2 The proposed safe-harbor rule states that a reasonable employer should determine, within 14 days of receipt of a no-match letter, whether a clerical error explains the discrepancy, correct the error, and advise the relevant agency. If no such error is found, the employer should instruct the employee to confirm the correctness of the information and, if the employee confirms, request that the employee resolve the matter directly with the relevant agency. The proposed rule states that this process should take no more than 60 days from receipt of the letter. If the employee’s identity and work authorization is not verified, the employer must terminate the employee or potentially face liability under section 274A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1324a(a)(2). The proposed rule provides the employer and employee three additional days to complete a new I-9 form.
3 The EEO statutes are: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Titles I and V of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.; and the Equal Pay Act of 1963, 29 U.S.C § 206(d).
4 Under Executive Order 12067, entitled “Providing for Coordination of Federal Equal Employment Opportunity Programs,” the EEOC coordinates federal equal employment opportunity regulations, practices, and policies. The Executive Order is available on the EEOC web site at: http://www.eeoc.gov/abouteeoc/35th/thelaw/eo-12067.html.
5 While federal law prohibits employers from employing individuals lacking work authorization, employers who nonetheless employ undocumented workers are prohibited from discriminating against those workers. See EEOC Compliance Manual, Section 13: National Origin Discrimination (2002), text at n.61, available at http://www.eeoc.gov/policy/docs/national-origin.html.
6 A citizenship requirement does not generally violate Title VII unless it results in disparate treatment of or impact against the protected group. For example, an employer may not refuse to hire Egyptian citizens for certain positions based on their lack of U.S. citizenship while hiring British citizens for the same positions. Although Title VII does not prohibit citizenship requirements, the Immigration Reform and Control Act of 1986 (IRCA) prohibits employers with four or more employees from discriminating because of citizenship status with respect to hiring, referral, or discharge. 8 U.S.C. §§ 1324b(a), 1324b(a)(2)(A). IRCA’s nondiscrimination requirements are enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, at the Department of Justice.
8 According to the proposed rule, DHS may find that an employer has constructive knowledge that one of its employees is unauthorized to work in the U.S. when: (1) employer receives a no-match letter; (2) checks and finds no clerical errors; (3) requests the employee to confirm that its records are correct; (4) instructs the employee to pursue the matter personally with the relevant agency; (5) the discrepancy is not resolved; and the (6) employer chooses not to terminate the employee but permits the employee to remain in its employ.
9 71 Fed. Reg. at 34,285, Proposed Rule amending 8 C.F.R. § 274a.1(1)(2)(i)(A) (emphasis added).
10 71 Fed. Reg. at 34,283 (emphasis added).
11 Id., Proposed Rule amending 8 C.F.R. Part 274a.1(1)(2)(i)(A)(2).
12 An employer may violate IRCA and Title VII if it requests employment verification only for individuals of a particular national origin, or individuals who appear to look or sound foreign. The employer may also violate IRCA if it imposes citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities.
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