DOJ Settles Discrimination Claims with Employers Using Campus Recruiting Services

At a Glance

• The Department of Justice has secured settlements from an additional 10 employers for posting discriminatory job advertisements on a college recruiting platform in violation of the Immigration and Nationality Act (INA).
• These settlements should serve as a warning to employers that the online job boards they use to attract talent may not be compliant with the INA.

Last month, the Department of Justice (DOJ) announced it had secured settlement agreements from another 10 employers for posting discriminatory job advertisements on a college recruiting platform in violation of the Immigration and Nationality Act (INA). These additional settlements bring the total amount of civil penalties collected by the Civil Rights Department’s Immigrant and Employee Rights Section of the DOJ (IER), the agency in charge of enforcing the INA, to resolve similar claims to an astounding $1.6 million from a total of 30 different companies — 16 in June 2022, and four in September 2022. Small oversights in job posting practices in conjunction with poorly designed recruitment platforms have cost individual companies over $300,000 and have left others concerned about the compliance of other recruiting platforms.

The INA — amended in 1965 to abolish the national-origin quota which allowed immigration decisions to be made based on national origin, race and ancestry — prohibits employers from treating individuals differently based on their citizenship status or national origin. The INA also aims to protect asylees, refugees and recent lawful permanent residents from discrimination in hiring, firing, recruitment and documentary practices. It has been our experience that charges filed by the IER most often occur when employers request additional or different documentation than the law requires to verify employment eligibility.

As part of IER’s settlement agreements, the named companies were assessed penalties for posting job advertisements on a Georgia Institute of Technology (Georgia Tech) recruiting platform that “locked non-U.S. citizen students out of job opportunities.” The IER investigation began after a Georgia Tech student filed a discrimination charge alleging that a bank’s internship posting on Georgia Tech’s recruiting platform appeared restricted to U.S. citizens only. According to the IER’s settlement agreement, IER discovered other discriminatory postings both on the Georgia Tech recruiting platform and other universities’ recruiting platforms.

IER’s fines were commensurate to the number of postings found to contain discriminatory language. In one case, IER fined $183,065 for 41 discriminatory postings against one company. IER also required companies to undergo training on the INA’s anti-discrimination provision to ensure future compliance.

Several settlement agreements indicate that some of the companies may not have been “entirely at fault” for the discriminatory language in the postings because Georgia Tech’s recruiting platform offered limited, confusing options under the “Work Authorization” section when posting jobs, such as referencing the applicant’s citizenship status, immigration status or visa category without a legal basis for the inquiry. The platform further created issues because it offered a mutually exclusive choice when they prompted employers to make a “Work Authorization” selection when creating a new posting restricting the available jobs depending on the selection. Instead of having the ability to choose multiple options, employers were restricted to selecting only one of the limited options, such as U.S. citizen, permanent resident, etc. The “Work Authorization” options had radio buttons next to each choice, with no on-screen instruction as to how employers could select multiple options in the list. When employers made a single selection from this list, candidates who identified as one off the other categories of work authorization would be unable to apply for the job. This issue was further compounded by the fact that many of the employers had used outside staffing services to create the job postings.

Employer Takeaways

With the prevalence and efficiency of online recruiting platforms, employers should remain aware of the platforms’ shortcomings and noncompliance with the antidiscrimination provisions of the INA. Georgia Tech has since entered a separate settlement agreement with the DOJ and has agreed to fix these errors with their recruiting platform. However, problems with online recruiting platforms still linger. This spate of settlement agreements reveals that companies can no longer take for granted that university platforms and even larger independent platforms are compliant with the INA and other regulations, are not shielded from IER scrutiny, and will be expected to comply with the INA even if another company is responsible for the posting. Employers must keep a watchful eye over job posting practices and ensure that employees and third-party staffing services are trained on the requirements of the INA and are able to promptly spot noncompliant practices within recruiting platforms and recruiting procedures.

Summer associate Tristan Verghese assisted in the preparation of this alert.