HR Management & Compliance, Recruiting

I-9: Avoid Discriminatory Practices

The I-9 process is one by which employers strive to confirm that individuals they hire are legally eligible to work in the United States. The I-9 is actually the name of the form that must be completed as part of this process. The I-9 is simple enough: It requires employers to get documentation that establishes individuals’ identity and work authorization.I9

In many cases, the same document will serve both purposes, such as a U.S. passport or a Permanent Resident Card, among other examples. In other cases, an individual’s identity and work authorization can be shown with two separate documents. The list of acceptable documents employers can use for this purpose can be accessed here, and it’s also printed right on the I-9 form itself.

National origin and race are protected classes under Title VII of the Civil Rights Act. What we need to avoid in this process is anything that may appear to be discriminatory against someone based on his or her race or national origin, as discovered during the I-9 process.

For example:

  • Don’t ask for specific types of identification (ID). Any item on the list of acceptable documents is fine. It’s not OK to require people to provide a Social Security card, for example, when they don’t have one but allow them to legally work in the United States. While it’s never OK to require specific documents, this issue is even more problematic if specific documents are only requested of certain individuals, such as those who may be from another country.
  • Don’t allow anyone in the hiring process to treat applicants differently if the I-9 process uncovers they have a country of origin other than the United States. The key is to ensure they have the legal right to work in the United States, but that does not mean any individual should be treated differently. Ensure hiring team members know this is not a cause for concern or for any change in procedure, other than confirming their documents, as you do for every new hire.
  • Don’t require some individuals to provide extra documentation. For example, if someone is from another country but provides acceptable documents as outlined on the I-9, don’t ask for more or different documentation or different forms of ID (assuming the ones provided were accurate, not expired, and on the list).
  • Don’t require reverification when it’s not needed, especially if done only for certain individuals.
  • Don’t ask for work authorization too early in the hiring process. This could appear to be discriminatory if it discourages those with other national origins from continuing the process.

The key here is to remember that there is a specific list of acceptable documents on the I-9 for a reason. As long as the documents provided are ones on the list, there is no reason to require anything else. Doing so may appear discriminatory, even if it’s done with the intent of being cautious and ensuring the employee has U.S. work authorization.

Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.