Indiscriminate Anti-Discrimination Enforcement: Why Is It Illegal To Check For Illegals?
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This past spring, as an undergraduate at the College of William and Mary, I took a seminar on immigration policy. Our class went to Washington D.C. to hear various bureaucrats and policy analysts discuss the issue. One was Bruce Friedman, head counsel for The Office of Special Counsel for Immigration-Related Unfair Employment Practices [OSC]. He gave us many examples of discrimination against non-citizens and explained how necessary it is to combat this grave problem.

The OSC came into existence with the Immigration Reform and Control Act of 1986. This law prohibited businesses from knowingly hiring illegal aliens. But, because of fear that this would keep employers from hiring any immigrants at all, the bill [Title 28. Chapter 1. Part 44. Subpart B (a)(1)] also established that

It is unfair immigration-related employment practice for a person or other entity to knowingly and intentionally discriminate or to engage in a pattern or practice of knowing and intentional discrimination against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment.

Three types of discrimination are banned. They are

  1. Citizenship status discrimination – you can't discriminate against non-U.S. citizens.

  1. National origin discrimination – you can't discriminate against citizens (or, of course, non-citizens) because of "place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding 'foreign.'"( And OSC has this jurisdiction over smaller employers not covered by the Equal Employment Opportunity Commission [EEOC].)

  1. Document abuse discrimination – you can't ask for "more or different documents than are required to verify employment eligibility" or "reject reasonably genuine-looking documents" etc.

Personally, as a member of a much younger generation, I have grave reservations about this civil-rights era legacy. It seems to me that every type of discrimination banned under this law can be perfectly rational. And even if it isn't, the decisions should be the choice of the employer.

Citizenship status, and what type of work permit someone has, should legitimately have a major bearing on an employer's hiring decision. Discriminating on the basis of national origin can also be rational, especially if there are issues involving language or accents, or in areas where questions of loyalty exist. Finally, the stricture against document fraud abuse puts businesses in an unfair position—they can be punished for not looking hard enough and also for looking too hard.

The mere fact that the OSC is under the Department of Justice's Department of Civil Rights shows how self-evidently absurd its purpose is. Merriam Webster's dictionary defines a civil right as the "right or rights belonging to a person by reason of citizenship." So an organization that protects people against discrimination on the basis of citizenship by definition cannot be protecting their civil rights. Non citizens ipso facto possess no "civil rights."

The 14th Amendment, which was used as the justification for federal enforcement of anti-discrimination laws. explicitly states that its purpose is to ensure that states do not "abridge the privileges or immunities of citizens of the United States." (My emphasis). If the federal government gets the right to enforce anti-discrimination laws from the 14th Amendment, then it clearly cannot apply to non-citizens.

Nevertheless, the 1986 Immigration Reform and Control Act creates two problems. Firstly, the federal government already refuses to give local and state police the right to arrest and detain illegal aliens. But while local authorities are not even allowed to be concerned with illegal aliens, IRCA makes individual employers responsible for detecting them. This places a huge burden on employers—punishing them because the federal government has failed in its duty to stop illegal immigration at the border and to deport them in any significant number when discovered.

Secondly, to make matters worse, employers are also now supposed not to "discriminate" against non-citizens. Obviously the part of the law that requires employers not to discriminate will make it less likely for him to want to hire non-citizens, so this contradiction inevitably creates more hassle.

The stricture against checking for document fraud makes it difficult for employer not to hire illegal aliens. OSC's Friedman insisted to us that it is not the responsibility for the employer to detect fraudulent documents and they should accept all reasonable-looking ID. But his office is not the one that punishes the employer for hiring illegal aliens. What constitutes a "reasonable" ID is a very subjective judgment. The OSC could say that, by not accepting an ID an employer is illegally discriminating, while the INS could say that, by accepting the same ID, the employer is hiring an illegal alien.

Furthermore, employers are prohibited from overly-scrutinizing some people while paying less attention to others. But this, like many other types of discrimination against non-citizens (or in this case, possible non-citizens), is simply rational. Someone who is Asian or Hispanic, with a non-Anglo-Saxon first name and an accent, is simply much more likely to be an illegal alien than someone who is white or black. It simply makes sense for an employer to pay closer attention to people from a national group that has provided more immigrants.

Friedman gave an example: a firm from Texas that scrutinized a Mexican-American for his identification papers (which ended up being legitimate), while they accepted a white Texan's unusual looking social security card. The OSC successfully sued the company for document abuse fraud.

I asked Friedman if the white Texan was an American citizen. Of course he was. It is almost certain that a white, who lives in Texas and who probably had a Texas accent, is a citizen. But there is a very good chance that any Mexican is an illegal alien.

Equally destructive are the bans against discriminating against people on the basis of the type of work permit they have. Friedman gave an example of someone with a temporary work permit, who was rejected from a job because the employer felt that it was not worth the investment to hire and train anyone who could only work for a short time. Again, the OSC successfully sued.

But this is a perfectly legitimate reason not to hire someone. If an American citizen was applying for a job, and told his employer that he would be moving in a year, the employer would be entirely within his rights not to hire him.

But, for some reason, immigrants get special protections not afforded to American citizens.

Another example comes from a DOJ brochure given to immigrants to inform them of their legal rights:

"I was trained as an airline pilot in Korea. I was working as a flight attendant for a U.S. airline and applied for a job opening for pilots. But my employer said that all pilots have to be U.S. citizens. I thought I would never be able to move up the employment ladder. Then a friend of mine told me that what had happened to me is illegal. She told me to call the Office of Special Counsel for Immigration-Related Unfair Employment Practices. She told me they have attorneys who will assist you free of charge. I called and they investigated, and now I'm flying!"

Hello? In the wake of 9/11, it is all too obvious that there are many reasons why an airline would only want to hire American citizens as pilots. Indeed, even before 9/11, there was the case of the Egyptian Air flight whose pilot apparently intentionally crashed his plane. Perhaps Koreans (or at least South Koreans) pose little terrorist risk. But it would make perfect sense for an airline not to want to hire citizens of terrorist-sponsoring states.

The federal government clearly recognizes that there are positions where only American citizens should work. When airport security was federalized, it wisely only allowed American citizens to be hired. But, hypocritically, it refuses American companies the option to do the same.

To the OSC, the "civil rights" of non-citizens are more important than national security. In the wake of September 11, the office posted on its website the stern admonition that "Employers, supervisors and employees must be especially vigilant to guard against unfair treatment of persons perceived to be of Middle Eastern descent."

Being allowed into this country is a privilege that the citizens of America give to immigrants. It is completely absurd to place such draconian burdens on native employers simply to protect the imaginary "civil rights" of non-citizens.

Marcus Epstein [send him mail] is an undergraduate at the College of William and Mary in Williamsburg, VA, where he is president of the college libertarians and editor of the conservative newspaper, The Remnant. A selection of his articles can be seen here.

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