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Employing Immigrants

Employment Discrimination


Background on the Law

Congress passed the first Immigration and Nationality Act in 1952, and has amended it many times over the years. The most recent version is the 1986 Reform and Control Act (IRCA).

  1. The law makes it illegal for employers to hire undocumented immigrants.
  2. The law also requires employers to check all new employees 'work authorization documents and to fill out Form I-9, "Employment Eligibility Verification."
  3. The law protects workers from discrimination by penalizing employers who discriminate, and providing remedies for workers who have been mistreated.

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National Origin Discrimination
Federal law prohibits workplace discrimination based on a person's national origin, race, color, religion, disability, sex, or familial status.

  • "National origin" includes a person's birthplace, ancestry, culture, customs and language.

Employers cannot hire, fire, promote, discipline, or harass people because of their national origin. For example, employers cannot make hiring decisions based on people's names or accents. Employers cannot treat people differently in the workplace because they look like they come from other parts of the world.

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Document Abuse
Employers are required by law to only hire those persons whose documents are in accordance with the I-9 Employment Eligibility Verification requirements that prove identity and work authorization. Document abuse may occur when an employer requires more or different documents than a new employee provides in order to complete Form I-9. Form I-9 has a list of 29 Employment Eligibility Verification documents. It is up to the employee, not the employer, which documents they will provide in accordance with the I-9 requirements.

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Citizenship Status Discrimination
The law requires employers to treat U.S. citizens and legal immigrants to the U.S. on an equal basis.

There are two limited exceptions to this rule:
  • Where federal, state or local laws, regulations or contracts with governmental entities require employers to hire only U.S. citizens. For example, some state laws require police officers to be citizens.
  • Where an employer selects an equally qualified U.S. citizen instead of a non-citizen. This exception is narrow. The employer must decide on a case-by-case basis at the time of hire, recruitment, or referral that the two applicants are equally qualified based on the actual requirements of the job. Employers cannot use this exception to discharge an employee.

Please note: Although immigration law does allow these two exceptions, such actions may violate other federal, state or local civil rights laws.

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Retaliation
It is against the law for employers to retaliate, intimidate, threaten or coerce a worker who:

  • Files or intends to file a discrimination charge.
  • Cooperates in an investigation or hearing concerning discrimination.
For example: A day-shift worker provides information in a discrimination investigation. The employer retaliates by moving the worker to the night-shift.