DOJ Settles with Large Health Care Organization Regarding Software-Based, Immigration-Related Discrimination Claims
On August 25, the Department of Justice (“DOJ”) announced that it has settled an immigration-related discrimination claim with Ascension Health Alliance (“Ascension”), a Missouri-based healthcare organization with more than 2,600 sites – including 146 hospitals and more than 40 senior living facilities – spread out over 19 states and the District of Columbia.
Ascension violated the Immigration and Nationality Act (INA) when it discriminated against work-authorized non-U.S. citizens based on their citizenship status. Ascension required more or different documents than were necessary when those employees attempted to reverify their continued work authorization.
Ascension Discriminated Against Non-U.S. Citizen Employees
The department’s investigation determined that Ascension made an automatic request that its non-U.S. citizen employees provide new documents to prove their continued work authorizations, even in situations where it was not required. Ascension, using a customized employment eligibility verification software program, electronically completed the form I-9. The software also tracked the expiration dates of non-U.S. citizen employee documents. The investigation revealed that Ascension improperly programmed the software to send automated e-mails requesting continued work authorization to all non-U.S. citizen employees, including U.S. nationals, lawful permanent residents, asylees, and refugees.
In response, the non-U.S. citizens promptly presented documents that did not require verification of employment eligibility. In some instances, Ascension further required non-U.S. citizen employees to provide new eligibility documents in order to continue working. In contrast, such e-mails were not sent to U.S. citizens and, therefore, they did not notify U.S. citizens who were approaching the expiration of their documents.
“Employers are reminded that while software programs may seem efficient, there is still a responsibility to ensure that programming decisions do not result in discrimination,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “This settlement makes clear that the Justice Department will vigorously enforce federal civil rights laws and hold employers accountable if their software results in unlawful discrimination.”
The settlement requires Ascension to pay the U.S. a civil penalty of $84,832.00. Additionally, Ascension will educate its employees on the requirements of the INA’s anti-discrimination provision. This will include providing employees with the Immigrant and Employee Rights Section (IER).
INA’s Anti-Discrimination Provision
Federal law allows all work-authorized individuals, regardless of their immigration status, to choose which valid, legally acceptable documentation to present to demonstrate the employee’s legal work authorization status. Non-U.S. citizen employees like lawful permanent residents, refugees, and asylees, among others, have work authorization that does not expire for many years. Such employees are eligible to use several types of documents as proof of work authorization, such as driver’s license, unrestricted social security card, etc.
The Civil Rights Division’s Immigrant and Employee Rights Section (IER) is the agency responsible for enforcing the INA’s anti-discrimination provision. The INA prohibits discrimination based on citizenship, immigration status, or national origin, in hiring, firing, or recruitment or referral for a fee. The statute also prohibits unfair documentary practices and retaliation and intimidation.