October 2021

Large Retail Company Defeats DOJ Immigration-Related Employment Discrimination Charge

United States - New York

A large retail company defeated a charge filed in the Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Department of Justice (DOJ). Faegre Drinker defended the retail company in the complex matter, which included responding to multiple discovery requests and defending witness interviews. The charge was brought by a job candidate who alleged that the retail company’s largest store in New York rejected her “valid” Form I-9 documents and improperly delayed her orientation twice.

Faegre Drinker successfully argued that the company did not discriminate against the charging party because of her citizenship status and/or national origin or commit document abuse by requesting more or different documentation than is required to verify employment eligibility. Faegre Drinker demonstrated that the retail company did not specify what specific document the charging party should present to complete Section 1 of the Form I-9 because she did not attend orientation or present any employment eligibility documents, and therefore the retail company could not have reviewed or rejected the job candidate’s “valid” documentation when she did not present any.

Further, Faegre Drinker argued the charging party suffered no tangible employment action because the retail company had not withdrawn its offer of employment, invited her to attend orientation multiple times, and confirmed that she was entitled to present identity and employment authorization documents of her choosing to complete the Form I-9 during orientation. After a swift six-month investigation, the IER dismissed the charge against the retail company and determined that it did not have reasonable cause to believe that the retail company discriminated against the charging party.

The IER enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits (1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, (2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, (3) unfair documentary practices during employment eligibility verification, Form I-9 and E-Verify, and (4) retaliation or intimidation.

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