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Oregon Discrimination Law

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Our HR person in Oregon has instructed us to make copies of the driver’s license and Social Security card of new employees for their I-9. I thought that this was discrimination under the law. Who is right?

This is a very good question. The key word in this situation is employee.

According to the Immigration Reform and Control Act of 1986 (IRCA), any business is legally permitted to copy work eligibility documents from an employee. Usually, this is handled via the Employment Eligibility Verification form, also known as the I-9.

Asking an applicant, however, to provide such documents can be problematical, especially if used to as a screening tool. That could open the employer to charges of discrimination. For instance, requiring these documents from Hispanics and not from other ethnic groups would be illegal. Or, if the employer refused to hire someone who presented a “green” card (resident alien card) as proof of eligibility, that would be illegal.

The IRCA prohibits discrimination based on citizenship status.

There is no state or federal law that prohibits asking an applicant for eligibility documents. The concern, however, is that with so much information on these documents, such as race, religion, age, etc that doing so could open the employer to charges of discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on color, sex, race, religion or national origin.

The reason to copy these documents from an employee comes from the IRCA itself. It is illegal to hire undocumented workers. The employer must prove that each of its employees is eligible to work in the United States or face heavy fines.

The employee has the option to choose which documents to provide for the I-9 form. Driver’s license, passport, resident alien card and others are documents listed on the I-9 as eligibility documents. Once copies are made, the employers must keep those copies on file for either one year after the employee is terminated, or for three years from the date of hiring, whichever is longer.

An employer that fails to keep these copies on file can face fines up to $200,000 per employee. JH