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Vermont Discrimination Law

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Our HR person in Vermont 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?

The I-9 process requires a delicate balancing act between discrimination and the need to insure that no undocumented workers are hired. That’s probably why you are under this common misconception.

In fact, it’s not only legal, but a good idea. It’s not a good idea to copy an applicant’s paperwork, because that could lead to charges of discrimination. That’s why many companies will not copy the documentation until after the employee is hired.

The Immigration Reform and Control Act of 1986 (known as the IRCA) forbids discrimination against anyone who is legally allowed to work in this country, whether based on citizenship status or on national origin. But at the same time, it will slap an employer with a significant fine if he or she hires an undocumented worker. The burden of proof lies with the employer, and the proof is in the Employment Eligibility Verification form with copies of the documents supporting the citizenship claim.

Employers maintain copies of the documentation for many reasons, among them the fat that copies provide a solid defense against any charges that undocumented workers were knowingly hired. And it’s less likely that a manager within the company will hire undocumented friends for a job.

Keep in mind that it would be discriminatory to refuse to interview or hire any applicants who offered a resident alien card rather than a Social Security card or driver’s license as documentation. It would also be discriminatory to ask only Hispanic applicants for documents and not members of other ethnic groups.

Some employers are concerned that a driver’s license photo, because it reveals a person’s color, sex, or race, can be used to discriminate. Many try to avoid having that kind of information about employees before hiring, so they copy the documentation after a person begins working.

Policies in many companies have established that the I-9 documentation on a worker be filed in a location separate from his or her personnel records. Again, it offers a proactive defense against charges of discrimination. JH