The Civil Rights Division of the Department of Justice (DOJ), which enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA), has issued a notice of proposed rulemaking designed to update and clarify its INA implementing regulations.
The INA’s anti-discrimination provisions protect individuals authorized to work in the United States from discrimination based on citizenship, immigration status, and national origin, and specifically prohibit three kinds of discriminatory practices: (1) discrimination with respect to hiring, recruiting/referring for a fee, or discharging an individual; (2) intimidation or retaliation; and (3) unfair documentary practices.
For the most part, in addition to housekeeping changes, the proposed rule conforms the regulations to established DOJ positions. For example, the proposed rule would clarify that discrimination on the basis of citizenship, immigration status, or national origin does not require a showing of animus or hostility, but instead simply requires a showing that an employer intentionally treated a protected individual differently.
The proposed rule would also change the name of the DOJ unit that enforces these provisions from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section of the Civil Rights Division.
Comments on the proposal are due on September 14, 2016. A copy of the notice of proposed rulemaking is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.