“Hire American” Doesn’t Justify Employing Only Citizens

As an employer, you have to verify the work eligibility of every employee, and that frustrating process might make you consider hiring only U.S. citizens. Please reconsider.

The form for verification, the I-9 form, is confusing and some of the documents you are presented may not look familiar to you—permanent residence cards, foreign passports, employment authorization documents, tribal documents. So, you may find completion of the required I-9 form stressful, especially since you have to swear under oath on the I-9 itself that the documents the employee presented and you examined appear to be genuine and the person is authorized to work in the U.S. to the best of your knowledge.

It is tempting to consider just making a blanket rule that you will only hire U.S. citizens. Then, you would only need to look at a driver’s license and social security card. Additionally, President Trump signed an executive order last year requiring “Buy American, Hire American” (notwithstanding the fact that he uses foreign guest workers as servers, housekeepers and cooks at his properties like Mar-A-Lago). So, wouldn’t you just be doing your patriotic duty by hiring only American-born workers at your company?

No.

There are both longstanding legal and historical reasons that “Hire American” should only be treated as a slogan and not an employment policy.

The same Immigration Reform and Control Act (“IRCA”) that introduced the I-9 form to American employers in 1986 also codified that employers with four or more employees are prohibited from discriminating on the basis of citizenship status, which occurs when adverse employment decisions are made based upon an individual’s real or perceived citizenship in the U.S. (or lack of citizenship) or an applicant’s legal immigration status.

The IRCA antidiscrimination provisions also prohibit small employers (e.g., those with four to fourteen employees) from committing national origin discrimination against any U.S. citizen or individual with employment authorization. Employers with 15 or more workers were already prohibited from considering national origin in employment decisions by Title VII of the Civil Rights Act of 1964. Any employer who only hires applicants born in the United States discriminates against all other national origins.

Therefore, any employer who takes into account an applicant’s country of birth or citizenship status when making hiring decisions violates federal law. Your only interest in someone’s citizenship or immigration status should be finding out within the first three days of work whether your new employee is eligible to work in the United States, no matter where that employee is from or whether he or she is a visa-holder, born elsewhere but now a green-card holder, or a citizen, naturalized or native-born.

But it isn’t only for legal reasons that you should never discriminate against legal immigrants in your workplace. Hiring legal immigrants also strengthens our democracy.

It is  important to understand the historical context of denying a legal immigrant the chance to work in America, which is supposed to be the Land of Opportunity. Our history is full of times when we excluded groups of immigrants in ways that now seems nonsensical.

For example, in the 1840’s and 1850’s, Irish immigrants fleeing a deathly famine and British oppression arrived on the East Coast in “coffin ships” (so called because almost 25% of the passengers who started the journey died during the passage). All of the lucky ones who survived to reach the United States were hungry, many were unskilled (often farmers who were initially unsuited to work in urban areas), and almost every one of them was Catholic. This was at a time when some Protestant conspiracy theorists fanned the flames of fear that the pope and his army would land in the United States, overthrow the government, establish a new Vatican in Cincinnati (of all places), and impose the Catholic canon as the law of the land.

(Forgive me if you already know all of this, but it appears to me that, 170 years later, the mistakes of our history are being forgotten and, therefore, will be inevitably repeated).

In cities like Boston, it was hard to assimilate such large numbers of immigrants and some employers decided it was easier just to exclude Irish workers from employment completely. “No Irish Need Apply” was a sign common in Boston storefronts at that time.

National origin and religious prejudice ran high across the country, and bigoted groups formed, such as the Know-Nothing party who believed that Protestantism defined American values and Irish Catholics had no place in America (regardless of the First Amendment’s protection of freedom of religion).

Fortunately, America also had its better angels. Abraham Lincoln was among the many Americans disturbed at the rise of this bigotry, as he explained in an 1855 letter to a friend:

As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it ‘all men are created equal, except negroes.’ When the Know-Nothings get control, it will read ‘all men are created equal, except negroes and foreigners and Catholics.’ When it comes to this, I should prefer emigrating to some country where they make no pretense of loving liberty—to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.

Fortunately, times quickly changed. The employers who wouldn’t hire Irish immigrants 10 years before changed their tunes after many Irish immigrants enthusiastically fought in the Civil War. Thirty-eight Union regiments had the word “Irish” in their names. Their patriotic fervor during the war helped to slowly diminish the anti-Irish bigotry and discrimination. In the following decades, the past mistake of excluding Irish employees was evident when many descendants of these Irish immigrants made great contributions to America–Henry Ford, Walt Disney, Justice William Brennan, Audie Murphy (the most-decorated soldier of WWII) and President John F. Kennedy.

So, if you want to both be truly patriotic and keep your company from violating the employment discrimination laws, forget “Hire American” and instead, honor those times when we as a country embraced the idea that welcoming legal immigrants and providing them with employment and other opportunities strengthened the USA. Your actions as an employer will protect your company legally and protect our democracy from repeating the mistakes of our past.

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