New initiatives combat illegal immigration, systemic discrimination

By G. Phillip Shuler

Two government agencies have recently announced new initiatives aimed at greater enforcement of federal laws against racial discrimination in the workplace and the hiring of illegal aliens.

In this post-Katrina world that we now find ourselves in, employers need to be especially mindful of the government's goals and how they could directly or indirectly impact the decisions your company makes regarding its labor pool.

As part of a comprehensive "interior enforcement" strategy, the Department of Homeland Security announced in April 2006 that its Office of Immigration and Customs Enforcement (ICE) is expanding its efforts to target the employers of illegal aliens.

One of the specific goals of the initiative is to identify and remove criminal aliens, fugitives and other immigration violators from the workforce. The office of ICE intends to accomplish its goals by building stronger worksite enforcements and compliance programs.

Specifically, it intends: 1) to sanction "knowing and reckless" employers of illegal aliens by not only levying administrative fines against them, but also by bringing criminal charges against them (indeed, ICE's budget request for 2007 seeks funding for an additional 171 agents who will be dedicated to its worksite enforcement efforts); 2) to eliminate Social Security abuses that tend to support illegal immigration by seeking access to Social Security data not previously provided to ICE; and 3) to work with Congress to build and create employer compliance systems that consist of a clear set of rules for employers to follow.

The second initiative was announced by the Equal Employment Opportunity Commission (EEOC) on April 4. The EEOC approved a new comprehensive program that will shift the agency's emphasis from individual claims of race discrimination to the investigation and litigation of systemic or class-wide cases of discrimination.

Systemic cases of discrimination are "pattern or practice" cases or policy and/or class cases where the alleged discrimination tends to have a broad impact on an industry, profession, company or geographic location. EEOC Chair Cari Domingues described the new initiative as a change in the agency's "fundamental priorities."

The EEOC program specifically calls for each of the agency's district (local) offices to submit plans for increasing the number of investigations and the amount of litigation involving claims of systemic discrimination.

It further calls for improved technical support to the district offices and greater coordination in the field to aid in accomplishing this goal. Perhaps most disturbing, though, is the component of the program that provides for incentives to commission staff for pursuing systemic cases and to reward effective systemic case work.

Meanwhile, the EEOC has also (not necessarily in conjunction with but curiously close in time to its systemic discrimination announcement) expanded its policy guidance on what constitutes race and color discrimination.

The EEOC stated that the concept of race discrimination includes discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features, adding that "everyone is protected from race and color discrimination." The agency defined "color discrimination" as occurring "when a person is discriminated against based on skin pigmentation (lightness or darkness of the skin), complexion, shade or tone."

You should further be aware that it is the EEOC's position that color discrimination can occur not only between persons of different races/ethnicities, but also between persons of the same race/ethnicity.

CASE NOTE: The United States Fifth Circuit Court of Appeal ruled on May 11, 2006, that a Marine Corps reserve officer who claimed that he was terminated from his employer because of his military status in violation of the USERRA must arbitrate his claim of wrongful termination because the USERRA does not preclude arbitration. Garrett v. Circuit City Stores Inc., 5th Cir., No. 04-11360.