Human Resource Blog

Texas Discrimination Law

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Our HR person in Texas 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?

In this case, your HR person is on the right track. It’s not only legal, it’s a good practice to make copies of any of the documents required by the I-9, provided the documentation belongs to an employee rather than an applicant. To avoid a possibility of discrimination, many companies will wait until someone is hired before making records of the paperwork.

For example, it would be illegal discrimination if a business were to ask only Latino applicants to furnish the documentation. It would also be discriminatory to refuse to interview or hire an applicant who presented a resident alien card rather than a Social Security card or driver’s license. Title VII of the Civil Rights Act of 1964 is the guiding legislation here.

Copies of the documentation must be kept on file for a year after a worker is terminated or 3 years after the hiring date - whichever comes last.

Companies will usually keep the supporting I-9 documentation copies of a worker in a filing cabinet separate from the same worker’s personnel file. Keeping the information on a worker’s national origin, race, color or sex separate from personnel records significantly reduces the opportunities for discrimination.

As can be seen, two issues must be balanced here — the need to avoid discrimination and the need to insure that all employees are legally allowed to work in this country. On the one hand, the Immigration Reform and Control Act of 1986 (IRCA) issues large fines against employers who hire undocumented workers. On the other hand, the same legislation forbids discrimination against any prospective employee who can legally work in the U.S.

It should be noted that an employer cannot determine which of the legal documents the worker will use on the I-9. It could be the Social Security card and driver’s license, a resident alien card (“green card”) or combinations of the other paperwork allowed by the I-9.

Driver’s license photos can reveal a worker’s race, color, or sex. Employers sometimes choose not to have that information before hiring. JH