Office of Special Counsel for Immigration Related Unfair Employment Practices – Testimony of Wade Henderson

Location: House Judiciary Committee; Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law

Chairman Gekas, Congresswoman Jackson-Lee, and members of the Subcommittee: I am Wade Henderson, Executive Director of the Leadership Conference on Civil Rights (LCCR). I appreciate the opportunity to present to you the views of the Leadership Conference regarding the operations of the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC).

The LCCR is the nation’s oldest and most diverse coalition of civil rights organizations. Founded in 1950 by Arnold Aronson, A. Philip Randolph, and Roy Wilkins, the Leadership Conference seeks to further the goal of equality under law through legislative advocacy and public education. The LCCR consists of over 180 organizations representing persons of color, women, children, organized labor, persons with disabilities, the elderly, gays and lesbians, and major religious groups. I am privileged to represent the civil and human rights community in submitting testimony for the record to the Committee.

It is not my intention to speak regarding the merits of any individual case, discussed here or elsewhere, in which the OSC has worked to uphold the antidiscrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA). Because it is my understanding that some concerns have been raised that the OSC has acted overzealously in particular cases, however, I would like to address those concerns, not only on behalf of the civil rights community but also as a person who was involved in the efforts to establish the OSC and who has had the pleasure of working with the agency over the years since its creation.

My intention in speaking about the OSC today is threefold. First, I would like to place any concerns that may be raised about the OSC’s handling of individual cases in their appropriate context, by providing the distinguished Members of this Subcommittee with a broader perspective on what is in fact a very small, limited agency working to enforce our antidiscrimination laws. Second, I will explain why I believe the OSC continues to be important in the efforts to fight discrimination on the basis of national origin and citizenship, and why the agency needs to be strengthened. Finally, I will provide my recommendation for how any concerns about how the OSC may function in individual cases can be best resolved in a way that fulfills, rather than undermines, our nation’s commitment to protect civil rights in the workplace.

It is true that the number of cases litigated by the Office of Special Counsel for Immigration Related Unfair Employment Practices and the overall amounts in civil penalties and back pay obtained have increased in recent years. However, a closer look at the numbers of cases fought and won by the OSC reveals that the agency is still just barely scratching the surface when it comes to effectively combating immigration-related discrimination in the workplace:

Back Pay Obtained:
FY98–$36,274 FY99–$141,473 FY00–$262,252 FY01–$169,664

Civil Penalties
FY98–$43,800 FY99–$200,665 FY00–$390,645 FY01–$360,324

Settlements/and Favorable Decisions
FY98–13 FY99–30 FY00–33 FY01–44

As these figures show, given the size of our economy and the American workforce, the results of the OSC’s efforts to enforce the antidiscrimination provisions of the Immigration Reform and Control Act of 1986 through litigation have been very limited; in fact, many in the civil rights community including myself believe they are far too limited than is desirable. There are several reasons for this result. First, the OSC is badly underfunded, operating on a budget of only about $6 million a year and on a staff of approximately 30 employees.

Second, in addition to the limited resources of the OSC, the laws themselves clearly limit the jurisdiction of the Office. A number of situations are legally beyond the reach of the OSC:

  • Noncitizens who lack employment authorization cannot maintain claims for document abuse.
  • Employers with 3 or fewer employees are exempt from the law’s coverage.
  • The law does not cover national origin discrimination situations that are already covered by Title VII.
  • The law does not apply where citizenship-based discrimination is required by (1) law, regulation or executive order; (2) a federal, state or local contract; or (3) where the Attorney General determines that it is essential for an employer to do business with a federal, state or local government.
  • The law does not prohibit citizenship-based discrimination where an employer chooses between a U.S. citizen and a noncitizen that are equally qualified for a position.
  • The law limits the definition of “protected individual,” for purposes of citizenship-based discrimination. Citizens and nationals of the United States are covered. However, legal permanent residents, refugees, asylees and temporary residents are not protected if they do not apply for citizenship within six months of becoming eligible, or if they have not become naturalized within two years of applying unless they are still actively pursuing it.
  • Finally, the law only applies in cases where there has been a finding of discriminatory intent; disparate impact alone is not sufficient.

These limitations on who is protected by IRCA’s antidiscrimination provisions mean that many victims of discriminatory practices are not able to file valid claims with the OSC. In those instances, the only way the OSC can remedy the unfair employment practices is through an independent investigation, the result of which is a civil penalty and changes in future practice. In such cases, however, the OSC is unable to obtain any compensation for the actual victim.

In addition to the above budgetary and legal constraints, the extent to which the Office of Special Counsel engages in litigation over unfair employment practices is limited for another reason, which is the Office has sought, since its inception, to find better alternatives. The OSC devotes a great deal of its limited resources to an outreach and education program that seeks to inform employers, employees and the general public about their rights and responsibilities under IRCA’s antidiscrimination provisions and which seeks to help employers learn how to comply with employment eligibility verification requirements in ways that do not lead to unfair discrimination.

For example, the Office’s outreach efforts include a national public awareness campaign known as “Look at the Facts . . . Not at the Faces,” focusing in particular on newly arrived immigrants who are more likely to face discrimination due to employer sanctions as well as on small business employers who may otherwise lack the resources to easily learn and comply with IRCA’s employer sanctions provisions in a fair manner. This campaign includes the wide distribution of educational materials and public service announcements on television, radio and in print. Perhaps the best evidence of the efforts of the OSC to make IRCA’s antidiscrimination provisions easy to understand and follow can be seen through the distribution in its materials of a simple list of ten steps that an employer can take to avoid immigration-related employment discrimination. I believe they are worth reciting here:

  1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.
  2. Accept the document(s) the employee presents. As long as the documents prove identity and work authorization and are included in the list on the back of the I-9 form, they are acceptable.
  3. Accept documents that appear to be genuine. Establishing the authenticity of a document is not your responsibility.
  4. Avoid “citizen only” or “permanent resident only” hiring policies. In most cases, it is illegal to require job applicants to have