Export Compliance Through Protected Individuals Only Hiring Policy Is Not a 100% Safe Haven from Claims of Citizenship and/or National Origin Discrimination Claims:
At one extreme, some Employer’s think a hiring policy of hiring only “Protected Individuals” is full armor against a claim of Citizenship and/or National Origin discrimination. It’s NOT.
- The Immigration and Employment Rights (“IER”) Section of the Department of Justice formerly The Office of Special Counsel for Immigration Related Unfair Employment Practices (“OSC”) commented in a January 2015 Technical Assistance Letter that an Employee dismissed for having provided false documents of Protected Individual status during the hiring process who later brought what they claimed were the genuine documents could bring a Citizenship Status or National Origin discrimination claim in the event of termination of that Employee. Legacy OSC said it would investigate such as charge, but qualified its statements by saying “an employer with a consistently-followed policy of terminating individuals for providing false information during the hiring process may have a legitimate non-discriminatory reason for the termination. Accordingly, whether or not this Office concludes that such a termination violates the anti-discrimination provision depends upon the facts presented.”
- That is not exactly a ringing endorsement of a “Protected Individuals Only” hiring policy.