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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?

Copies aren’t required, but they are perfectly legal, and many employers use them as proactive proof against charges of knowingly hiring undocumented workers. To avoid charges of discrimination in hiring, however, many employers will not copy the documentation of applicants. They will wait until someone is hired before creating the copies.

Asking applicants for copies could lead to allegations of discrimination. It would be a violation of both the Immigration Reform and Control Act of 1986 (IRCA) and Title VII of the Civil Rights Act of 1964, for example, to ask only Latino applicants to furnish documentation required for I-9 paperwork. It would be legal, however, to copy the documentation of all applicants.

Driver’s licenses may reveal an applicant’s gender, color, or race. That’s another reason why employers will often wait until after someone is hired to copy a license as part of I-9 documentation.

Many companies have set up policies guaranteeing that I-9 documentation on an employee is kept in a filing cabinet separate from the same worker’s personnel records. Again, it insures against discrimination and potential charges of discrimination.

As can be seen, this is a balancing act between insuring that, on the one hand, undocumented workers are not hired and, on the other, that there is no discrimination in hiring. The IRCA will levy large fines against employers who knowingly hire undocumented workers. The same Act, however, makes it against the law to discriminate in hiring against anyone who may legally work in the U.S., based either on national origin or citizenship status.

Employees cannot tell an applicant which, among the forms of documentation listed on the I-9, he or she must present. The paperwork may include a driver’s license and a Social Security card, but it may also be a resident alien card (“green card”) combined with other documents on the allowable list.

Companies make it a policy to keep copies on file because, first, it helps avoid the possibility of a manager hiring undocumented friends and second, because it provides defense against a charge that undocumented workers were knowingly hired. JH