Beware of Citizenship Discrimination
Discrimination is never pretty, and when it comes to hiring practices, it’s downright illegal. It is common knowledge that discrimination in hiring based on sex, race, or ethnicity is strictly prohibited by federal law.
Recruiters, especially those dealing with documented foreign job seekers, need to be aware that discrimination based on citizenship status is also illegal. An employer may not hire based only on the type of visa a person holds, and certainly cannot (legally) exclude U.S. citizens in favor of documented foreign workers. A computer programming company located in New Jersey, Iflowsoft, LLC, found that out the hard way.
According to a U.S. Department of Justice press release, the company allegedly engaged in just such a pattern of citizenship status discrimination.
It seems Iflowsoft posted several job advertisements for IT professionals expressing a preference for temporary visa holders (specifically H-1B transfers and/or OPT candidates). The facially discriminatory advertisements deterred the charging party, a U.S. citizen, from applying to Iflowsoft. In addition, the department found Iflowsoft hired an H1-B visa holder without considering a qualified U.S. citizen applicant. The Immigration and Nationality Act (INA) generally prohibits employers from discriminating based on citizenship status during the hiring process.
Under the terms of the settlement, Iflowsoft has agreed to pay $6,400 in civil penalties and $7,158.49 in back pay to two U.S. citizens who were qualified for the positions advertised and applied, or would have applied for the positions. Iflowsoft has also agreed to provide its employees training on the INA anti-discrimination requirements, adopt nondiscrimination policies with respect to recruitment and hiring, and maintain and submit records to the United States for the three-year term of the agreement.
“All workers who are authorized to work in the United States, whether they are citizens or not, have the right to look for a job without facing discrimination,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “We are pleased to have reached a settlement with Iflowsoft and look forward to continuing to work with public and private employers to educate them about anti-discrimination protections and employer obligations under the law.”