Ten things employers and recruiters should know to avoid discriminatory practices

Recently, there has been news reports about how some online employment advertisements discriminate against U.S. workers by focusing on foreign workers in OPT/CPT or H-1B status. These are mostly information technology jobs posted by IT consulting firms and recruiters.  In light of the shortage of qualified high-tech U.S. workers, these employers and recruiters try to lure foreign skilled workers by offering them OPT/CPT or H-1B employment.  However, in doing so, they could be accused of engaging in discriminatory practices against U.S. workers.  Similarly, it is also possible for employers to post help wanted ads that discriminate against workers who are not U.S. citizens and legal residents.  The following are ten things that employers and recruiters should pay attention to in order to avoid violation of the law. 

1) In general, treat work-authorized job applicants equally in recruiting and hiring without regard to their citizenship status or national origin unless required by law.

2) Understand that in addition to U.S. citizens and legal residents, there are many classes of immigrants who are authorized to work in the United States.  For example, individuals with employment authorization documents (EAD) are authorized by the DHS to work.

3) If a certain position requires a specific citizenship status (i.e., U.S. citizen), carefully

review the legal support for such a requirement (i.e., law, regulation, government contract,

etc.) before posting the job advertisement.

4)  If not legally required, avoid unjustified discriminatory language against U.S. citizens in job postings, such as the "H-1Bs Only," “OPT Candidates Only/Preferred,” etc. 

5) If not legally required, avoid unjustified discriminatory language against non U.S. citizens/legal residents in job postings, such as the "Only U.S. Citizens", "Citizenship requirement", "Only U.S. Citizens or Green Card Holders", "Must have a U.S. Passport", "Must have a green card", etc. 

6) Avoid asking for I-9 qualifying identification required at time of application.  Employees have three days to produce such documents after starting work.

7) Avoid job requirements related to an individual’s national origin (i.e., language fluency requirements) unless they are necessary to perform the job effectively.

8) When completing the I-9 form for new hires, employers must accept any acceptable qualifying documents.

9) Ensure that all individuals involved in hiring and recruiting are familiar with equal employment opportunity laws.

10) Avoid asking for unnecessary personal information such as marital status and religious beliefs unless the information is needed for the performance of the job duties.

These guidelines are recommended by the U.S. Department of Justice’s Office of Special Counsel and should be followed by employers to avoid violation of the laws.