Indiscriminate Anti-Discrimination Enforcement: Why Is It Illegal To Check For Illegals?


This past spring, as an undergraduate at the College
of William and Mary, I took a seminar on immigration
policy. Our class went to Washington D.C. to hear
various bureaucrats and policy analysts discuss the
issue. One was Bruce Friedman, head counsel for

The Office of Special Counsel for Immigration-Related
Unfair Employment Practices
[OSC]. He gave us many
examples of discrimination against non-citizens and
explained how necessary it is to combat this grave
problem.

The OSC came into existence with the

Immigration Reform and Control Act of 1986.
 This
law prohibited businesses from

knowingly hiring illegal aliens
. But, because of
fear that this would keep employers from hiring any
immigrants at all, the bill [Title 28. Chapter 1. Part
44. Subpart B (a)(1)] also

established
that

It is unfair
immigration-related employment practice for a person or
other entity to knowingly and intentionally discriminate
or to engage in a pattern or practice of knowing and
intentional discrimination against any individual (other
than an unauthorized alien) with respect to the hiring,
or recruitment or referral for a fee, of the individual
for employment or the discharging of the individual from
employment.

Three types of discrimination are

banned
. They are

  1. Citizenship status
    discrimination
    – you can`t discriminate
    against non-U.S. citizens.

  1. National origin
    discrimination
    – you can`t discriminate
    against citizens (or, of course, non-citizens) because
    of “place of birth, country of origin, ancestry,
    native language,

    accent
    or because they are perceived as looking or
    sounding `foreign.`”
    ( And OSC has this
    jurisdiction over smaller employers not covered by the
    Equal Employment Opportunity Commission [EEOC].)

  1. Document abuse
    discrimination
    – you can`t ask for “more or
    different documents than are required to verify
    employment eligibility” or “reject reasonably
    genuine-looking documents” etc.

Personally, as a member of a much

younger generation
, I have grave reservations about
this civil-rights era

legacy
. It seems to me that every type of
discrimination banned under this law can be perfectly
rational. And even if it isn`t, the decisions should be
the choice of the employer.

Citizenship status, and what type
of work permit someone has, should legitimately have a
major bearing on an employer`s hiring decision.
Discriminating on the basis of national origin can also
be rational, especially if there are issues involving
language or accents, or in areas where questions of
loyalty exist. Finally, the stricture against document
fraud abuse puts businesses in an unfair position—they
can be punished for not looking hard enough and also
for looking too hard.

The mere fact that the OSC is under
the Department of Justice`s Department of Civil Rights
shows how self-evidently absurd its purpose is. Merriam
Webster`s dictionary defines a civil right as the
“right or rights belonging to a person by reason of
citizenship.”
So an organization that protects
people against discrimination on the basis of
citizenship by definition cannot be protecting
their civil rights. Non citizens ipso facto
possess no “civil rights.”

The 14th Amendment,
which was used as the

justification
for federal enforcement of
anti-discrimination laws. explicitly states that its
purpose is to ensure that states do not abridge
the privileges or immunities of citizens of the
United States.”
(My
emphasis). If the federal government gets the right to
enforce anti-discrimination laws from the

14th Amendment
, then it clearly cannot
apply to non-citizens.

Nevertheless, the 1986 Immigration
Reform and Control Act creates two problems. Firstly,
the federal government already refuses to give

local and state police
the right to arrest and
detain illegal aliens. But while

local authorities
are not even allowed to be
concerned with illegal aliens, IRCA makes individual
employers responsible for detecting them. This places a
huge burden on employers—punishing them because the
federal government has

failed in its duty to stop illegal immigration
at
the border and to deport them in any significant number
when discovered.

Secondly, to make matters worse,
employers are also now supposed not to “discriminate
against non-citizens. Obviously the part of the law that
requires employers not to discriminate will make it less
likely for him to want to hire non-citizens, so this
contradiction inevitably creates more hassle.

The

stricture against checking for document fraud
makes
it difficult for employer not to hire illegal aliens.
OSC`s Friedman insisted to us that it is not the
responsibility for the employer to detect fraudulent
documents and they should accept all reasonable-looking
ID. But his office is not the one that punishes the
employer for hiring illegal aliens. What constitutes a
reasonable
ID is a very subjective judgment. The OSC could say
that, by not accepting an ID an employer is illegally
discriminating, while the INS could say that, by
accepting the same ID, the employer is

hiring an illegal alien.

Furthermore, employers are
prohibited from overly-scrutinizing some people while
paying less attention to others. But this, like many
other types of discrimination against non-citizens (or
in this case, possible non-citizens), is simply

rational
. Someone who is Asian or Hispanic, with a
non-Anglo-Saxon first name and an accent, is simply much
more likely to be an illegal alien than someone who is
white or black. It simply makes sense for an employer to
pay closer attention to people from a national group
that has provided more immigrants.

Friedman gave an example: a firm
from Texas that scrutinized a Mexican-American for his
identification papers (which ended up being legitimate),
while they accepted a white Texan`s unusual looking
social security card. The OSC successfully sued the
company for document abuse fraud.

I asked Friedman if the white Texan
was an American citizen. Of course he was. It is almost
certain that a white, who

lives in Texas
and who probably had a Texas accent,
is a citizen. But there is a very good chance that any
Mexican is an illegal alien.

Equally destructive are the bans
against discriminating against people on the basis of
the type of work permit they have. Friedman gave an example
of someone with a temporary work permit, who was rejected
from a job because the employer felt that it was not
worth the investment to hire and train anyone who could
only work for a short time. Again, the OSC successfully
sued.

But this is a perfectly legitimate
reason not to hire someone. If an American citizen was
applying for a job, and told his employer that he would
be

moving
in a year, the employer would be entirely
within his rights not to hire him.

But, for some reason, immigrants
get special protections not afforded to American
citizens.

Another example comes from a DOJ brochure given to immigrants to inform them of their legal rights:

“I was
trained as an airline pilot in Korea. I was working as a
flight attendant for a U.S. airline and applied for a
job opening for pilots. But my employer said that all
pilots have to be U.S. citizens. I thought I would never
be able to move up the employment ladder. Then a friend
of mine told me that what had happened to me is illegal.
She told me to call the Office of Special Counsel for
Immigration-Related Unfair Employment Practices. She
told me they have attorneys who will assist you free of
charge. I called and they investigated, and now I`m
flying!”

Hello? In the wake of 9/11, it is all too obvious that there are many reasons why an
airline would only want to hire American
citizens as pilots.
Indeed, even before 9/11, there was the case of the Egyptian Air flight whose
pilot apparently intentionally
crashed his plane.

Perhaps Koreans (or at least South Koreans) pose little terrorist risk. But it would make
perfect sense for an airline not to want to hire citizens of terrorist-sponsoring states.

The federal government clearly recognizes that there are
positions where only American citizens should work. When airport security was
federalized, it wisely only allowed
American
citizens to be hired.
But, hypocritically, it refuses American companies the option to do the same.

To the OSC, the “civil rights” of non-citizens are
more important than national security.
In the wake of September 11, the office posted
on its website the stern admonition that “Employers, supervisors and employees must be especially
vigilant to guard against unfair treatment of persons perceived to be of Middle Eastern descent.”

Being allowed into this country is
a privilege that the citizens of America give to
immigrants. It is completely absurd to place such
draconian burdens on native employers simply to protect
the imaginary “civil rights” of non-citizens.


Marcus Epstein [send
him mail
] is an
undergraduate at the College of William and Mary in
Williamsburg, VA, where he is president of the college
libertarians and editor of the conservative newspaper,

The Remnant.


A selection of his articles can be seen here
.