National Origin and Citizenship Discrimination in Hiring

Why this matters

Most small shops that get into trouble here were not trying to discriminate. They were trying to be careful. The office manager who asks a new hire with an accent for "your green card, to be safe" thinks she is protecting the shop from an immigration problem, and she has just committed one of the specific violations the immigration law lists by name. The owner who posts "U.S. citizens only" thinks he is avoiding paperwork, and he has excluded lawful permanent residents and refugees the law protects. Two federal laws reach these decisions, at different shop sizes, and the smaller of the two thresholds is four employees. This card walks the hiring path station by station and names what each law does at each one.

This is not legal advice. The points where a shop should stop and call a lawyer are named at the end.

Two federal laws, two thresholds, and the state layer on top

• Title VII of the Civil Rights Act prohibits national-origin discrimination in hiring, pay, assignment and firing for employers with 15 or more employees. National origin means a person's (or their ancestors') place of origin, and it reaches traits tied to it: accent, language, surname, appearance.
• The anti-discrimination provision of the Immigration and Nationality Act, 8 U.S.C. 1324b, fills the gap below Title VII and adds two protections Title VII does not have. For employers with 4 or more employees it prohibits discrimination based on citizenship or immigration status, and unfair documentary practices (usually called document abuse) in the employment-verification process. It also prohibits national-origin discrimination for employers with 4 to 14 employees, the band Title VII does not reach. Retaliation against anyone who complains or cooperates is prohibited too. It is enforced by the Immigrant and Employee Rights Section (IER) of the Justice Department's Civil Rights Division, whose own coverage chart is the place to confirm these thresholds.
• States routinely go further. New York and New Jersey cover employers of any size for national origin; California's Fair Employment and Housing Act covers employers of 5 or more and lists language and accent within national origin. Check your state's civil rights agency.

A shop of four or more is inside at least one federal layer. A one-truck operation with a part-time office helper may be inside its state's.

Station 1: the job posting

What goes wrong. "U.S. citizens only." "Must have a green card." "Native English speaker." The first two exclude people the law protects: citizenship-status protection covers U.S. citizens and nationals and, under conditions the statute sets, lawful permanent residents, refugees and asylees. A citizenship requirement is lawful only where a law, regulation or government contract requires it. The third phrase is a national-origin proxy; "native" describes where someone grew up, not what they can do.

What works. "Must be authorized to work in the United States." Where language genuinely matters, describe the task: "Must be able to explain repair options to customers in English" for a service tech, or "Spanish and English, spoken, for customer calls" for a bilingual office role. A language requirement has to be tied to what the job actually needs.

Station 2: screening and the interview

Lawful to ask: whether the candidate is authorized to work in the U.S., and whether they will now or in the future require sponsorship for a work visa. Ask every candidate the same way.

Not to ask: where they were born, where their parents are from, what their first language is, whether they are a citizen (as opposed to whether they are authorized to work), or "where's that accent from." Even when the answer plays no part in the decision, asking puts a fact on the record that a rejected candidate can point to.

Language ability is tested, not guessed. If the job needs English for customer calls, test the skill the job uses with the same short exercise for everyone, and decide on the result. How accent may and may not factor in is covered in its own card. See related: Accent and the Customer Phone Call.

Station 3: the offer and the Form I-9

This is where small shops most often commit a violation without realizing it, because it feels like diligence. The mechanics of the form itself belong to a sibling (see related: Form I-9 + E-Verify Compliance); this station is about the discrimination rules that sit on top of it.

• The employee chooses the documents. They may present one item from List A, or one from List B plus one from List C. The employer may not specify which, may not ask for more than the form requires, and may not ask for a particular document because of the person's apparent citizenship or national origin.
• The employer examines what is presented and accepts it if it reasonably appears genuine and relates to the person. Rejecting a document that looks genuine because the person "seems foreign" is document abuse.
• The same process for every hire. Asking only the hires with accents or foreign-sounding names for extra documents, or photocopying documents only for some hires, is the pattern IER looks for.
• Do not collect I-9 documents before the offer. Asking for them at the application stage invites screening on status.
• Reverification is narrow. It applies to expiring employment authorization. A U.S. citizen's documents are never reverified, and an expiring permanent resident card is not a reason to reverify.

Station 4: placement, pay and the referral pipeline

After hire, Title VII (and state law below 15) reaches assignment and pay. Putting every Spanish-speaking hire on the demolition crew by default, or paying a translation premium only to speakers of one language, is a national-origin decision even if nobody intended it as one.

Word-of-mouth hiring deserves a line. A shop that hires only through its current crew's family and friends can end up excluding everyone outside one community, in either direction. It is not unlawful in itself, but a shop that has never posted a job publicly has no evidence of an open process if a rejected candidate complains.

Worked example: a 9-person HVAC shop

Nine employees: inside the immigration law's 4-or-more coverage for citizenship status, document abuse and national origin, below Title VII's 15. The shop is in New Jersey, so the state's civil rights law, which covers employers of any size, also applies.

The posting read "Service tech wanted. Must be a U.S. citizen. Valid driver's license." Two applicants with permanent resident cards did not apply after reading it; the shop knows because one mentioned it to a current employee. That posting excluded protected individuals with no legal requirement behind it, since the shop has no government contract that demands citizenship.

The interview. The owner asked the candidate he hired, a tech who grew up in Colombia, "So are you a citizen or what?" The candidate said he was a permanent resident. It did not affect the decision, but the question is on record.

The I-9. On the first day the tech presented a state driver's license (List B) and an unrestricted Social Security card (List C). The office manager said, "Can you bring your green card too, so we're covered?" He brought it the next day; she copied all three.

Run the stations:

• Posting: citizenship requirement with no legal basis. Fix: "Must be authorized to work in the U.S."
• Interview: citizenship asked in place of work authorization. Fix: the two lawful questions, asked of everyone.
• I-9: the license and Social Security card were a complete, acceptable combination. Asking for the green card in addition is a request for more documents than the form requires, made because the manager knew his status, which is the definition of document abuse. Copying documents for him when she does not copy for everyone compounds it.

What the shop did. It rewrote the posting, gave the office manager a one-page I-9 procedure (accept any acceptable combination, copy for everyone or for no one, never ask for a specific document), and sent the green-card copy back to the employee rather than keeping a document he was never required to provide. The owner called IER's employer hotline to confirm the procedure before rolling it out.

What would have changed the answer. Had the shop held a federal contract with a citizenship requirement for certain work, the posting could lawfully have required citizenship for those positions, though only those, and only to the extent the contract requires. Had the shop been a three-person operation, the federal citizenship and document-abuse provisions would not have reached it, but New Jersey's law still would have for national origin, so the "citizen or what" question and the singled-out document request remain the same risk under the state layer. Small size does not make the conduct safe; it changes which agency hears it.

The failure mode to watch. The manager's request felt like caution. Nothing in the shop's process made her stop and ask whether the form required it. The fix is a written procedure applied to every hire identically, because the violation lives in the difference between how two hires were treated.

Where to stop and get a professional

Call an employment or immigration attorney before acting when: an applicant or employee says they were treated differently because of status, origin or accent; you receive a notice of inspection for your I-9s; an E-Verify case comes back as a tentative nonconfirmation and you are unsure of the steps (never take adverse action while it is being contested); or you are considering firing someone over a document problem. Walk in with the posting, the interview notes, the I-9 and any copies, the dates, and a list of how the last few hires were processed, because the comparison is the evidence. For procedural questions without a dispute, IER's employer hotline answers them.

How to check your own process

Pull the last five hires' I-9s and compare them side by side: which lists were used, whether copies were kept, and whether any file holds more documents than the form required. Then read your current posting and interview script against Stations 1 and 2. Any difference between how two hires were handled is the first thing to explain or fix.

References

• Title VII of the Civil Rights Act of 1964, national origin (employers with 15 or more employees); EEOC Enforcement Guidance on National Origin Discrimination
• Immigration and Nationality Act anti-discrimination provision, 8 U.S.C. 1324b, enforced by the DOJ Civil Rights Division, Immigrant and Employee Rights Section
• USCIS, Form I-9 instructions and the Lists of Acceptable Documents
• See related: Form I-9 + E-Verify Compliance
• See related: English-Only Rules and What the Law Allows