Henderson Criticizes Employer Sanctions, Supports Anti-Discrimination Laws in Testimony Before House Immigration Subcommittee
Feature Story by Suzanne Lee - 3/22/2002
Washington, DC?The Office of Special Counsel for Immigration Related Unfair Employment Practices, created under the Department of Justice's Civil Rights Division by the Immigration Reform and Control Act of 1986 (IRCA), was developed to protect U.S. citizens and immigrant workers from employment discrimination on basis of citizenship status or national origin. However, this comes into conflict with an employer's responsibility to prevent the hiring of illegal immigrants at the risk of facing civil and criminal sanctions by the OSC. A resolution to this conflict was at issue in a March 21 oversight hearing of the House Subcommittee on Immigration and Claims.At the outset of the hearing, Subcommittee member Sheila Jackson Lee (D-TX) acknowledged the difficulties that employers in the United States face in attempting to comply with both federal discrimination laws and OSC regulations: "On the one hand you have some employers demanding that American citizens show 'green cards' as part of the employment application process because that applicant might look Hispanic. On the other hand, you may have the INS and the Office of Special Counsel raiding or investigating certain employees because they might have workers who have physical characteristics of people born outside of the United States."
The House subcommittee heard testimony from Juan Carlos Benitez, Special Counsel for the OSC, who described the mission and procedures of the OSC. The OSC utilizes investigation and litigation, informational outreach program, and early intervention program to ensure fair hiring practices, he noted.
Otto Kuczynski, the president of Fairfield Textiles Corporation, spoke on behalf of employers in the United States. Before members of the House subcommittee, he described an INS raid in 1991 in the New Jersey facilities of his company, in which INS officials took custody of employees who appeared to have been immigrants, demanding verification of their identity and legal residency status. Though many were found to be illegal aliens, the INS did not fault Fairfield Textiles. Still, realizing the traumatic impact of such an incident, Kuczynski gave verbal orders to those in charge of hiring to redouble efforts of ensuring that illegal aliens weren't hired.
However, just a few years later, the Justice Department filed a lawsuit against Fairfield Textiles, charging that it had engaged in discriminatory hiring practices in requiring other documents beyond those required by federal statutes. In addition to imposing a number of fines on Fairfield Textiles, the OSC impressed a number of obligations that seemed to contradict federal statutes that required proper identity verification and the lessons learned from the 1991 INS raid. "My supervisory employees, in an effort not to run afoul of INS requirements-and mindful of the INS 'raid' in 1991 upon my Companies, consistently use the employment application process to obtain as many documents as possible, rather than as few documents as permissible to prove employment eligibility."
Sympathizing with the plight of employers like Kuczynski, Wade Henderson, executive director of the Leadership Conference on Civil Rights, addressed the problem IRCA created: "...IRCA's employer sanctions and anti-discrimination provisions, together, make some employers feel 'stuck between a rock and a hard place'...if employers no longer faced the threat of sanctions, they would be far more comfortable with the anti-discrimination laws."
Henderson acknowledged the work of the OSC in preventing employment discrimination, but pointed out that it was a small agency with limited resources. He offered a remedy to the House subcommittee, the elimination of employer sanctions. "IRCA's employer sanctions have resulted in not just an increase but an explosion of immigration-related job discrimination, and I urge Congress to take the long-overdue step of bringing them to an end."
Both United States employers and immigrant advocates hope that the hearing will spur initiative in Congress to get rid of such employer sanctions, which seem to be increasing the problems facing immigrants. Echoing these sentiments, Congresswoman Lee declared, "As I keep saying and continue to say: we are a nation of laws...but we are also a nation of immigrants. Prosecution and investigation of employers should be based on fairness and due process as well."
