Recent DOJ Settlements Reveal Risk of Unintentional Immigration Bias Caused By Recruitment Software

November 16, 2022

Recently, the Justice Departments have turned their focus on hiring discrimination. Because of this action, several employers who used only recruiting platforms now face bias allegations. In addition, many companies have settled with the Department of Justice’s (DOJ) Immigrant and Employee Rights (IER) Section within recent months. These settlements addressed claims of bias and included several of the largest companies in the US.

Many of these companies had posted job advertisements on online recruitment platforms, which the DOJ later found discriminated against non-citizen applicants. This discrimination was due to language, which allegedly indicated that US citizenship was a requirement to qualify for the position.

Under the Immigration and Nationality Act (INA), employers cannot discriminate against individuals based on national origin, citizenship, or immigration status. However, the Act makes exceptions when law, regulation, government contracts, or executive orders are required.

Though the companies disputed these allegations of wrongdoing, they agreed to settlements that included over $1.1 million in civil penalties. Additional enforcement actions could still be forthcoming, as well as the DOJ investigating how other employers used these platforms.

According to immigration attorneys, these investigations should warn employers about the potential risks associated with using online recruiting platforms. In addition, these recent developments demonstrate that the DOJ is willing to investigate more complex and technologically advanced cases covering many employers.

Reinforcing this is a statement from the DOJ’s IER Section itself, stating that combating cases of discrimination involving technology is one of its priorities. As these settlements have shown, these violations often can result from unintentional actions and intentional discrimination.

Something as simple as an unchecked box or default settings in a recruitment program can result in allegations of discrimination. These settings mean that employers must remain vigilant of the programs they use for recruitment and how they reach candidates.

The IER may investigate an employer in response to a complaint or on its own initiative. Furthermore, the DOJ has been clear that a failure to understand software is not a barrier to enforcement.

According to attorneys’ statements regarding these recent settlements, the employers did not intend to limit these positions to only US citizens. Instead, they claimed such failures happened because of confusion regarding how to operate this software. Employers must ensure that they understand any recruitment software they use to ensure compliance with federal requirements.

As these settlements show, the DOJ continues to focus on employers’ compliance with INA requirements. This focus extends to compliance with employment eligibility verification requirements, which the INA and other federal laws regulate. The best way to ensure compliance with these requirements is with an electronic I-9 management tool. This tool can provide step-by-step guidance, taking the guesswork out of the process and providing safe and simple storage of forms and documentation.

Learn more about automating your employment eligibility verification and ensuring compliance with I-9 Compliance.