OVERSIGHT HEARING ON THE OFFICE OF SPECIAL COUNSELFOR IMMIGRATION RELATED UNFAIR EMPLOYMENT PRACTICES
Chairman Gekas, Congresswoman Jackson-Lee, and members of the Subcommittee: I am Wade Henderson, Executive Director of the Leadership Conference on Civil Rights (LCCR). I appreciate the opportunity to present to you the views of the Leadership Conference regarding the operations of the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC).
My intention in speaking about the OSC today is threefold. First, I would like to place any concerns that may be raised about the OSC’s handling of individual cases in their appropriate context, by providing the distinguished Members of this Subcommittee with a broader perspective on what is in fact a very small, limited agency working to enforce our antidiscrimination laws. Second, I will explain why I believe the OSC continues to be important in the efforts to fight discrimination on the basis of national origin and citizenship, and why the agency needs to be strengthened. Finally, I will provide my recommendation for how any concerns about how the OSC may function in individual cases can be best resolved in a way that fulfills, rather than undermines, our nation’s commitment to protect civil rights in the workplace.
It is true that the number of cases litigated by the Office of Special Counsel for Immigration Related Unfair Employment Practices and the overall amounts in civil penalties and back pay obtained have increased in recent years. However, a closer look at the numbers of cases fought and won by the OSC reveals that the agency is still just barely scratching the surface when it comes to effectively combating immigration-related discrimination in the workplace:
As these figures show, given the size of our economy and the American workforce, the results of the OSC’s efforts to enforce the antidiscrimination provisions of the Immigration Reform and Control Act of 1986 through litigation have been very limited; in fact, many in the civil rights community including myself believe they are far too limited than is desirable. There are several reasons for this result. First, the OSC is badly underfunded, operating on a budget of only about $6 million a year and on a staff of approximately 30 employees.
Second, in addition to the limited resources of the OSC, the laws themselves clearly limit the jurisdiction of the Office. A number of situations are legally beyond the reach of the OSC:
· Noncitizens who lack employment authorization cannot maintain claims for document abuse.
· Employers with 3 or fewer employees are exempt from the law’s coverage.
· The law does not cover national origin discrimination situations that are already covered by Title VII.
· The law does not apply where citizenship-based discrimination is required by (1) law, regulation or executive order; (2) a federal, state or local contract; or (3) where the Attorney General determines that it is essential for an employer to do business with a federal, state or local government.
The law does not
prohibit citizenship-based discrimination where an employer chooses between a
The law limits the
definition of “protected individual,” for purposes of citizenship-based
discrimination. Citizens and nationals
· Finally, the law only applies in cases where there has been a finding of discriminatory intent; disparate impact alone is not sufficient.
These limitations on who is protected by IRCA’s antidiscrimination provisions mean that many victims of discriminatory practices are not able to file valid claims with the OSC. In those instances, the only way the OSC can remedy the unfair employment practices is through an independent investigation, the result of which is a civil penalty and changes in future practice. In such cases, however, the OSC is unable to obtain any compensation for the actual victim.
In addition to the above budgetary and legal constraints, the extent to which the Office of Special Counsel engages in litigation over unfair employment practices is limited for another reason, which is the Office has sought, since its inception, to find better alternatives. The OSC devotes a great deal of its limited resources to an outreach and education program that seeks to inform employers, employees and the general public about their rights and responsibilities under IRCA’s antidiscrimination provisions and which seeks to help employers learn how to comply with employment eligibility verification requirements in ways that do not lead to unfair discrimination.
For example, the Office’s outreach efforts include a national public awareness campaign known as “Look at the Facts . . . Not at the Faces,” focusing in particular on newly arrived immigrants who are more likely to face discrimination due to employer sanctions as well as on small business employers who may otherwise lack the resources to easily learn and comply with IRCA’s employer sanctions provisions in a fair manner. This campaign includes the wide distribution of educational materials and public service announcements on television, radio and in print. Perhaps the best evidence of the efforts of the OSC to make IRCA’s antidiscrimination provisions easy to understand and follow can be seen through the distribution in its materials of a simple list of ten steps that an employer can take to avoid immigration-related employment discrimination. I believe they are worth reciting here:
1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.
2. Accept the document(s) the employee presents. As long as the documents prove identity and work authorization and are included in the list on the back of the I-9 form, they are acceptable.
3. Accept documents that appear to be genuine. Establishing the authenticity of a document is not your responsibility.
4. Avoid “citizen only” or “permanent resident only” hiring policies. In most cases, it is illegal to require job applicants to have a particular immigration status.
5. Give out the same job information over the telephone to all callers, and use the same application form for all applicants.
6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.
7. Complete the I-9 form and keep it on file for at least 3 years from the date of employment or for 1 year after the employee leaves the job, whichever is later. You must also make the forms available to government inspectors upon request.
On the I-9 form,
verify that you have seen documents establishing identity and work
authorization for all your new employees,
9. Remember that many work authorization documents must be renewed on or before their expiration date, and the I-9 form must be updated. This process is called reverification. At this time, you must accept any valid documents your employee chooses to present, whether or not they are the same documents provided initially. (Note: you do not need to see an identity document when the I-9 form is updated.)
10. Be aware that U.S. citizenship, or nationality, belongs not only to persons born in the United States but also to all individuals born to a U.S. citizen, and those born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island. Citizenship is granted to legal immigrants after they complete the naturalization process.
In addition, each year the OSC awards grants to organizations across the country to conduct local public education campaigns that can be targeted towards particular communities. Last July, for example, the OSC awarded $700,000 in grants to eleven nonprofit organizations, covering thirteen states, for public education programs. Business associations receive OSC grants as well, including the American Council on International Personnel, the Greater Miami Chamber of Commerce and the National Restaurant Association in the past few years. Since 1990, the OSC has awarded approximately $15 million in grants for outreach and education programs, in the hopes that IRCA-related employment discrimination – and the litigation made necessary when violations do occur – can be prevented. Unfortunately, the OSC’s resources for outreach have been cut since the beginning, so the Office has had to reach out to more newcomers with less money.
Even once it is too late to prevent individual instances of immigration-related discrimination, the OSC seeks to avoid resorting to litigation when it is possible to do so. To this end, the Office established an "Early Interventions" program in which OSC staff determines that a case can be resolved quickly and without filing formal charges and, where a specific employee is involved, bringing him or her together with the employer to prevent a discriminatory act from taking place, or quickly remedying or undoing its effects. Early Interventions are made possible through the use of a toll-free telephone hotline that allows employers and employees alike to call, regardless of the caller’s language, with a complaint or a question about what to do in a specific situation. The hotline, which receives an average of 1500-2000 calls per month, has resulted in approximately 140-150 successful Early Interventions per year.
Finally, the OSC also works through
cross-governmental cooperation, having Memoranda of Understanding with numerous
federal and state/local civil rights agencies. The OSC trains other civil
rights agencies so that they, too, can carry out the mission of
immigration-related job discrimination locally and receive cases which can be
forwarded to the OSC in
I realize that there is nothing I have said so far that cannot be said in even greater detail by Special Counsel Juan Carlos Benítez himself. I say it all, however, because I believe it is important to drive home the point that the Office of Special Counsel is not some sort of overzealous or even “lawsuit happy” agency that is out to “get” businesses or anyone else. Hopefully I have succeeded in making this clear. Yet that does not mean that I have no complaints of my own about the agency. In fact, if everything else remains the same, I believe that the OSC needs to do far, far more to eradicate immigration-related discrimination.
Over the past decade, there has
been virtually no growth in the resources of the OSC. At the same time, the population of newcomers
Finally, the difficult documentation issues that employers now face did not exist in 1986. As Congressman Conyers, for instance, and many other immigration and civil rights advocates predicted would happen at the time of IRCA’s passage, the use of fraudulent documents has grown as a result of employer sanctions. Many employers, mistakenly believing that it is their responsibility to be certain that documents proving identity and work authorization are genuine in order to comply with IRCA, are naturally going to feel pressure to place extra scrutiny on workers, scrutiny that is bound, intentionally or unintentionally, to unfairly single out greater numbers of potential employees who look or sound “foreign.” The events of September 11, undoubtedly, have added to this by making immigrants even greater targets of suspicion.
While the number of cases successfully handled by the Office of Special Counsel has increased in recent years, as the statistics I cited earlier show, the extent of the OSC’s enforcement efforts has still been woefully inadequate. It made a great deal of sense for the OSC to emphasize outreach and conciliation in the earliest stages following the enactment of IRCA, and this work remains crucial, but a tenet of enforcement in this area is that examples must be made of employers who flout the laws. Making an example of employers who engage in discrimination, I might add, also requires adequately publicizing the results of the OSC’s enforcement efforts, and this too is hindered by the agency’s limited resources – meaning that other employers not involved in OSC litigation are rarely if ever given enough encouragement to look at their own hiring practices. While most employers do indeed get it right when it comes to verifying employment eligibility in a fair manner, the need for a strong deterrent effect continues to exist, not only to make it clear to employers that antidiscrimination laws must be taken seriously but also to encourage victims of discrimination to come forward when their rights have been violated.
While I believe that the OSC has performed as efficiently and fairly as it can, given the size of and the constraints on the agency, if it lacks the proper resources to look for discrimination, it is not going to be able to find it and properly deal with it. Even with the many ways that the OSC tries to make it easy for employers to avoid being sued, there are still going to be those who need lawsuits to force them to comply with the law. It is particularly in the interests of the majority of employers, who carefully avoid cutting corners, that the OSC ensures that other employers do not. Since its inception, the ability of the OSC to do this has been hampered, and if nothing else changes, the budgetary and legal resources available to the OSC need to be vastly improved before it will ever become a truly effective force in protecting the civil rights of noncitizens in the workplace.
As you may have noticed, I have been arguing that the Office of Special Counsel needs to be strengthened if nothing else changes. The truth, however, is that something else can and ought to be changed. This brings me to my last point, what I and countless numbers of other immigration and civil rights advocates, not to mention both labor and business organizations, have been recommending for years. As the Subcommittee is aware, Congressman Frank proposed and Congress overwhelmingly supported the creation of the Office of Special Counsel in the hopes of addressing a very specific concern: the fear that the employer sanctions enacted as part of the Immigration Reform and Control Act would lead to increased discrimination in the workplace on the basis of citizenship and national origin. For a decade and a half now, the evidence has proven, overwhelmingly, that this fear was well-founded. IRCA’s employer sanctions have resulted in not just an increase but an explosion of immigration-related job discrimination, and I urge Congress to take the long-overdue step of bringing them to an end.
The scope of immigration-related discrimination since the enactment of IRCA has been substantial, and numerous studies, by not only immigration and civil rights organizations such as the Mexican American Legal Defense and Education Fund and the American Civil Liberties Union, but also by the General Accounting Office as well as the U.S. Commission on Civil Rights, have confirmed this. For example, in its third report on employer sanctions, issued in March 1990, the GAO found that IRCA had created a widespread pattern of discrimination throughout the country. Although this pattern was evident throughout the country, it was highest in areas with the greatest numbers of Latinos and Asians. The GAO estimated that ten percent of employers had responded to IRCA’s employer sanctions by engaging in discrimination on the basis of national origin, and an additional nine percent of employers had begun to engage in discrimination on the basis of citizenship. This, the GAO found, amounted to 891,000 employers who – by their own admission – adopted discriminatory hiring practices as a result of employer sanctions. Subsequent studies confirmed that the existence of discrimination was widespread, and in 1993, the National Council of La Raza found that even if every single potential flaw in the 1990 GAO study was accepted as a matter of fact, employer sanctions were still responsible for at least 111,375 new incidents of discrimination each year.
has also shown that IRCA has caused discrimination in areas other than
employment. The City of
The concept of “eligibility” as defined by IRCA has had a strong, negative impact on the availability and delivery of services to the immigrant community. Landlords and service providers may select potential tenants on the basis of citizenship or immigrant status, with the ultimate goal of denying service to certain national origin groups . . . Testimony [before the Commission] also revealed discrimination in the provision of services and public accommodations, including insurance and banking services, even though the IRCA does not directly affect these areas.
Similarly, a study for the District of Columbia Latino Civil Rights Task Force found, in a particularly blatant example of IRCA-related discrimination that:
Banks have . . . become institutions that believe it is their right to screen Latinos and determine whether they are properly in this country . . . In Maryland . . . for example . . . in order to cash a check . . . a Maryland driver’s license or Maryland ID [is required], and the sign at the bank requiring such documents is written only in Spanish.
addition to causing widespread discrimination, there is also compelling
evidence that employer sanctions have simply failed to achieve their stated
goal of discouraging illegal immigration.
The current undocumented population in the
In 1999, in response to overwhelming criticism, the Immigration and Naturalization Service announced that it was reducing its efforts to enforce the IRCA employer sanctions provisions. While the intent of this shift in priorities is laudable, the fact that the largely unenforced sanctions remain on the books has brought another problem to the surface: there is now even less of a disincentive for employers to hire undocumented workers, yet employers who want to get rid of particular employees, for example because of their union activities, can still justify their actions by claiming that they are merely doing it out of fear of employment sanctions. This problem, and the resulting abuses faced by employees in the workplace, was a major factor that led the AFL-CIO to reconsider its position on employer sanctions and call for their repeal.
Ultimately, the INS’s announcement that it is reducing its emphasis on the enforcement of employer sanctions is of little comfort to employees who are facing discrimination in the workplace based on national origin or citizenship. In the same way that the INS’s announcement in late 2000 that it would increase its use of “prosecutorial discretion” in pursuing removals under the mandatory deportation provisions of the 1996 immigration law reforms has done little to reduce the harsh impact of those laws, the decreased enforcement of the employer sanction provisions by the INS will do little to reduce the unfair consequences that exist, as long as the laws continue to remain on the books.
In closing, I would like to address specifically the concern that IRCA’s employer sanctions and antidiscrimination provisions, taken together, make some employers feel “stuck between a rock and a hard place.” I believe that the OSC has done what it can, through educational materials such as the ten-step list I described in my full statement, for example, to make it easier for employers to see that there need not be any such dilemma. But to the extent that the dilemma still does exist in the minds of those whom the OSC has not been able to reach, I would suggest this: if employers no longer faced the threat of sanctions, they would be far more comfortable with the antidiscrimination laws. Eliminate the “rock,” and the “hard place” is no longer so hard.
In fact, eliminating sanctions could ultimately prove to have another benefit for employers: they would no longer need to fear dealing with the Office of Special Counsel either, because the need for the agency would likely diminish. Congress, after all, created the OSC solely to deal with any discrimination that resulted from employer sanctions. Congressman Frank, whose amendment to IRCA created the Office, made this perfectly clear in 1986 during a discussion of the agency on the House floor: “If we get rid of sanctions, we get rid of this.” If Congress takes the long-overdue step of eliminating employer sanctions, it would go a very long way towards eliminating the problem that has made the agency so very necessary in the first place. I look forward to the day when we no longer need the OSC. Until then, however, I will continue to strongly urge Congress to provide the Office with the resources it needs.
Mr. Chairman, Congresswoman Jackson-Lee, and Members of the Subcommittee, thank you for providing me with the opportunity to testify today. I will now be happy to answer any questions that you may have.