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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

            STATEMENT OF

            JUAN CARLOS BENITEZ

            SPECIAL COUNSEL FOR IMMIGRATION RELATED UNFAIR

            EMPLOYMENT PRACTICES

            CIVIL RIGHTS DIVISION

            U.S. DEPARTMENT OF JUSTCE

 

            MARCH 21, 2002

 

 

Mr. Chairman and Members of the Subcommittee:

 

            Thank you, Mr. Chairman, and Members of this Subcommittee, for the opportunity to talk with you today.  I am Juan Carlos Benítez, the Special Counsel for Immigration Related Unfair Employment Practices.  I hold a Presidentially Appointed/Senate Confirmed position.  I assumed the position of Special Counsel after the Senate approved my nomination on November 13, 2001.  Today I will tell you about the Office that I lead, the statutes that we enforce, the lawsuits that we file, and the special efforts we take to ensure that the statutory rights of U.S. citizens and documented aliens are protected and enforced.

 

            I.          The Office of Special Counsel

           

            I lead the Office of the Special Counsel for Immigration Related Unfair Employment Practices, or OSC for short.  The OSC is part of the U.S. Department of Justice’s Civil Rights Division.  The OSC’s mission is to protect United States citizens and work‑authorized aliens from illegal employment discrimination, as defined by federal statutes.

 

            The OSC relies on several means to achieve this mission.  First, we undertake traditional methods that are familiar to most people:  investigation and litigation.  Second, we have a vigorous informational outreach program directed towards employers and potential victims of discrimination.  Third, we use a unique early intervention program that enables us to resolve potential charges of discrimination early ‑‑ before they result in formal charges. 

           

            II.         Office of Special Counsel Enforcement of 8 U.S.C. § 1324b

 

            The Immigration Reform and Control Act of 1986 (known as IRCA) created OSC and the law it enforces, 8 U.S.C. § 1324b.  Indeed, we owe our existence to a member of this Subcommittee, Congressman Frank of Massachusetts, the author of the amendment that would become Section 1324b.

 

            Section 1324b prohibits certain types of employment discrimination.  Put simply, Section 1324b prohibits employment discrimination on the basis of citizenship status or national origin, and also prohibits certain unfair document practices.  Under IRCA, employers in the United States were, for the first time, required to verify the identity and work authorization of every new employee.  IRCA also made it illegal for employers in the United States to knowingly hire undocumented aliens.  An employer who failed to verify a new employee’s identity and work authorization, or who knowingly hired an undocumented alien, could be subject to civil or criminal penalties.

 

            When IRCA was under consideration, there was concern that employers would seek to avoid penalties for hiring undocumented aliens by refusing to hire anyone who did not look or sound  "American."  To address those concerns, IRCA identified and prohibited certain immigration‑related unfair employment practices in an effort to prevent employers from discriminating against U.S. citizens and work‑authorized aliens.  IRCA created a new legal cause of action for citizenship status discrimination, extended the jurisdiction of existing federal laws prohibiting national origin discrimination to employers of 4 to 14 employees, directed that cases alleging violations of Section 1324b be heard by specially trained Administrative Law Judges with the U.S. Department of Justice, Office of the Chief Administrative Hearing Officer ("OCAHO"), and created the position that I hold and the Office that I lead.  IRCA also mandated an outreach and education program that has proven to be a mainstay in our efforts to prevent unlawful discrimination against U.S. citizens and work‑authorized aliens.

 

 

 

 

            A.  Investigation of Charges

            Section 1324b provides that the Special Counsel shall investigate charges of discrimination and, where there is reasonable cause to believe that the charge is true, prosecute employers accused of discrimination.  Much of my Office’s time is devoted to the investigation of charges of discrimination.  The conduct of our investigations is governed by statute and regulation.  The statute provides that the Special Counsel "shall investigate each charge received¼ ." 8 U.S.C. § 1324b.  Within 120 days of the receipt of a complete charge, the Special Counsel must determine whether there is reason to believe the charge is true and whether or not   to bring a complaint based on the charge before OCAHO. 8 U.S.C. §  1324b(c)(2).  OSC processes all charges received and made complete, and has no backlog of cases.

 

            B.  Independent Investigations

            In addition to conducting charge‑based investigations, the Special Counsel may conduct independent investigations to determine if a person or entity has engaged or is engaging in illegal discrimination as defined by the statute.  8 U.S.C. § 1324b(d)(1), 28 C.F.R. § 44.304.  The Special Counsel may do so when there is "reason to believe that a person or entity has engaged in or is engaging in [illegal discrimination]."  28 C.F.R.

§ 44.304(a).

                                                                                                           

            III.       Causes of Action Under 8 U.S.C. § 1324b.

 

            The statute provides:

It is an unfair immigration‑related employment practice for a person or other  entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) 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 –  (A) because of such individual's national origin, or (B) in the case of a protected individual ... because of such individual's citizenship status.

 

8 U.S.C. § 1324b.  The Statute also contains a broad prohibition against intimidation or retaliation and prohibits certain unfair documentary practices relating to the verification of an employee’s identity and work authorization.  8 U.S.C. § 1324b(a)(5),(6).  I will discuss each in turn.

 

            A.  Citizenship Status Discrimination

 

            Citizenship status discrimination is discrimination against an individual on the basis of his or her immigration or citizenship status.  For example, an employer who refuses to hire an applicant who is a  work‑authorized immigrant simply because the applicant is an immigrant has engaged in citizenship status discrimination.  The pre‑IRCA case of Espinoza v. Farah, 414 U.S. 86 (1973) addressed the issue of citizenship status discrimination.  In that case, Mr. and Mrs. Espinoza alleged that Farah Manufacturing’s U.S. citizens‑only employment policy violated Title VII of the Civil Rights Act of 1964.  Mr. and Mrs. Espinoza asserted that this policy was an act of national origin discrimination.  Writing for the majority, Justice Thurgood Marshall held that Farah’s citizens‑only policy was not national origin discrimination, but rather was discrimination on the basis of alienage.  The Court stated that Espinoza’s national origin (Hispanic)  was irrelevant,  and in fact Farah hired overwhelming numbers of Hispanics at the factory in question.  Instead, Farah’s distinction was based on citizenship status and the fact that Mrs. Espinoza was not a citizen of the United States.  Since Title VII did not prohibit citizenship status discrimination, there was no remedy for this conduct under federal law.

 

IRCA’s enactment made illegal the behavior engaged in by Farah.  Under IRCA, "protected individuals" can maintain a cause of action for citizenship status discrimination.  Section 1324b defines "protected individuals" as persons who are lawful permanent residents, temporary residents admitted under IRCA’s amnesty program, refugees and persons granted political asylum.  In the case of permanent residents, individuals who fail to apply for naturalization within 6 months of becoming eligible, or who fail to complete the naturalization process within 2 years of having applied for naturalization, lose their status as protected individuals.

           

 

 

B.  National Origin Discrimination

 

National origin discrimination is, as the phrase implies, discrimination against an individual because of the individual’s place of birth or ancestry.  For example, an employer’s failure to hire an individual because she is from Mexico is national origin discrimination.  Similarly, discrimination against a person because their parents are from a foreign country is national origin discrimination.  The OSC’s jurisdiction over national origin cases is limited to employers of between 4 and 14 individuals.  Only a small percentage of the OSC’s cases and matters involve national origin discrimination.  However, they do occur.  For example, the OSC recently had a case where a woman  who is fluent in English but speaks with a thick accent called a small law firm in response to an advertisement for a legal technician.  Within moments the woman was told that the position had been filled.  Minutes later the woman’s daughter, who speaks English with no accent whatsoever, called the same firm in response to the same advertisement.  The daughter was invited in for an interview.  This powerful evidence of national origin discrimination allowed OSC to obtain a prompt settlement in favor of the woman.

 

C.  Unfair Documentary Practices (Document Abuse)

 

As I mentioned earlier, IRCA requires that employers verify the identity and work authorization of all new employees.  As part of that process, the employee must complete and the employer must retain an Immigration and Naturalization Service form I‑9, on which the employer records data from the documents presented by the new employee.  Employees may present any of a number of documents, or combination of documents, to establish their identity and work authorization.  It is up to the employee to decide what document or combination of legally accepted documents to provide to establish identity and work authorization.  The I‑9 form has sections that must be completed by employees and sections that must be completed by employers.  The form must be retained by employers and made available to representatives of the INS or the OSC, if requested.

           

 Document abuse cases arise when an employer demands more or different documents, or rejects valid documents, when verifying an employee’s or applicant’s identity and work authorization, and the demand or refusal to accept is made with the intent of discriminating against the employee or applicant on the basis of citizenship status or national origin.  8 U.S.C. § 1324b(a)(6).  If, for example, an employer demands that Hispanics present "green cards" to the exclusion of all other documents, the employer is likely committing document abuse in violation of 8 U.S.C. § 1324b(a)(6).

 

In order to satisfy the intent standard, the OSC seeks evidence that the charging party was treated differently from others during the employment eligibility process as a result of citizenship status or national origin.  This intent can be inferred through indirect evidence.  For example, evidence that immigrants were required to present a specific form of identification for employment eligibility purposes, while persons who profess to be U.S. citizens were allowed to present any of the documents allowed by law for the same purpose, is evidence of an intent to discriminate on the basis of citizenship status.   And evidence that Hispanics were held to higher standards than non‑Hispanics during the employment eligibility process could be used to infer intent to discriminate on the basis of national origin.

 

The majority of the OSC’s charge and litigation docket consists of cases and matters alleging document abuse.  This results from several factors.  First, document abuse is the area of the OSC’s broadest jurisdiction.  OSC’s jurisdiction in document abuse cases extends over all employers in the United States with more than 4 employees.  Second, all work authorized immigrants are protected against document abuse, in contrast to citizenship status claims, where a permanent resident’s protection ends if they fail to apply for naturalization within 6 months of becoming eligible to do so.  Third, the employer’s behavior in a case alleging document abuse is overt and easily understood by the average person.  In document abuse cases the employer usually engages in a single obvious act:  either the rejection of valid work authorization documents or the request for more or specified documents.   Most of the information a charging party needs to make an allegation of document abuse has been openly revealed.  In contrast, many citizenship status and national origin claims involve more subtle activity or behavior that is open to interpretation.

 

Document abuse does not simply affect work‑authorized immigrants.  Indeed, one of the OSC’s first cases was brought on behalf of a U.S. citizen who also happened to be from Puerto Rico.  In her case, an employer demanded that she present a "green card" as part of the application process.  In spite of her insistence that she was indeed a U.S. citizen, and the fact that she presented her Puerto Rican birth certificate, the employer refused to hire her.  He assumed that she was an immigrant because she was Hispanic.

 

IV.       American Competitiveness and Workforce Improvement Act of 1998

 

In addition to enforcing Section 1324b, the OSC has been charged with new responsibilities under the American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA").  ACWIA establishes additional protections for U.S. workers under the labor condition application process.  Employers use the labor condition process to bring temporary foreign professionals into the United States on non‑immigrant H‑1B visas. ACWIA creates a new "failure to select" cause of action.  This new action allows an aggrieved party to file a complaint against a covered employer when that employer seeks to hire an H‑1B visa holder over an equally or better qualified U.S. worker. 

 

On November 20, 2000, the Attorney General delegated to the OSC the authority to receive and review complaints filed under ACWIA, and initiate arbitration of those complaints before the Federal Mediation and Conciliation Service (FMCS).  OCAHO was authorized to review decisions of the arbitrators and award relief.  We are in the process of creating an outreach plan to educate covered employers on their responsibilities under ACWIA.

 

V.        Outreach and Intervention

 

The OSC has always maintained a vigorous outreach program.  In the past year, and particularly in the past several months, we have improved upon that program in four ways.

 

First, we have implemented a plan to create a more balanced outreach program.  In the past, the OSC’s outreach has been primarily directed towards the employee community.  However, the statute imposing the outreach requirements call for an outreach program that increases the knowledge of both employers and employees.  In order to meet that requirement, I have met with representatives of employer groups and sought their advice on how to better communicate with employers.  We plan to meet with state and local chambers of commerce, and other types of employer organizations.

 

Second, we have tailored our employee outreach to better reach under‑served portions of the worker community by using ethnic media outlets more efficiently.  Specifically, OSC attorneys and staff will participate in foreign language radio programs.  Recently, OSC staff appeared on  Haitian (Creole language) radio programs in New York City and Florida.  Large numbers of Haitian immigrants depend on these types of programs for their news and entertainment.

 

Third, we have renewed our efforts to work cooperatively with state and local governments.  Since my arrival in November, we have met with representatives of two major cities with large immigrant populations.  We are negotiating agreements with these cities to engage in cooperative efforts to educate the employee and employer communities on their rights and responsibilities under Section 1324b. 

 

Finally, the events of September 11th created new program challenges for the OSC.  While it is clear that we all need to be more vigilant, we must also be careful not to assume that immigration status is the sole predictor of whether or not an individual poses a threat.  As the President has pointed out so often, America’s quarrel is with terrorists, not with persons who wish to contribute peacefully to American society.  The OSC was one of the first components within the Civil Rights Division to distribute information to employers and workers regarding concerns of discrimination following the World Trade Center and Pentagon attacks.  This information was distributed to employer associations, immigrant associations, and has been posted on the OSC’s website.

 

In addition to conducting outreach and prosecuting charges of discrimination, the OSC has facilitated a number of favorable pre‑charge interventions.  In these matters, OSC staff worked actively with both the employer and the aggrieved individual to resolve the dispute without formal government intervention.  A typical example took place on February 6, 2002.  A human resources manager at a Minneapolis‑based company contacted the OSC with questions about the employment of a refugee from Somalia.  At hiring, the refugee had presented photo identification, an unrestricted Social Security card, and a valid INS‑issued work authorization document.  The company had suspended the refugee believing that he had to present a new INS‑issued work authorization document to replace his original, and now expired, document.  The OSC attorney who took the call explained to the company representative that asylees are authorized to work indefinitely incident to their asylee status, and that an unrestricted Social Security card was valid evidence of employment eligibility.  The employer agreed to reinstate the refugee.

 

In the course of discussing the refugee's case, the human resources manager indicated that it was the company's practice to reverify the work‑authorization status of every non‑U.S. citizen who presented an INS‑issued document, upon that documents' expiration.  The OSC attorney advised that reverification of all non‑U.S. citizens could result in the unnecessary reverification of immigrants who have indefinite work authorization incident to their status, such as lawful permanent residents, refugees and asylees.  The human resources manager agreed to modify his practices accordingly. 

 

 

VI.       Conclusion

 

In closing I note that the OSC has important statutory responsibilities.  We take our charge seriously to enforce these statutory responsibilities.  All of the men and women of the OSC are proud of the role they play in ensuring that out nation’s civil rights laws are fairly enforced.  I thank you for the opportunity to present this testimony.  I would be happy to answer any questions that you may have.


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