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Recruiting Platforms Put Employers at Risk of Unintentional Bias

Sept. 26, 2022, 9:21 AM

Employers using online recruiting platforms risk running afoul of immigration law, as the Justice Department has taken a new focus on hiring discrimination against non-citizens.

As of last week, 20 companies have settled with the DOJ’s Immigrant and Employee Rights Section over the alleged bias, including such big names as Walmart Inc., CarMax Inc., Capital One Financial Corp., and KPMG LLP.

The companies all posted advertisements on a Georgia Institute of Technology job recruiting platform that the agency found discriminated against non-citizen applicants by illegally indicating that US citizenship was a requirement for the position.

Employers can’t discriminate based on citizenship or immigration status unless required by a law, regulation, executive order, or government contract.

The companies, which denied wrongdoing, agreed to pay a total of more than $1.1 million in civil penalties.

Yet more enforcement actions could be in the offing as the government investigates other employers’ use of the platform.

The DOJ’s investigation should put companies on notice about the potential pitfalls of recruiting technology, immigration attorneys say.

It also shows a willingness on the part of the Immigrant and Employee Rights Section, which investigates discrimination under the Immigration and Nationality Act, to take on “more complex, more involved cases to identify patterns that may run among multiple employers,” said León Rodríguez, a partner at Seyfarth Shaw LLP and former assistant attorney general who oversaw IER.

In fact, one of IER’s priorities is combating discrimination involving the use of technology, a DOJ spokeswoman said.

The agency also has increased investigations of discrimination against vulnerable immigrants, such as asylees and refugees, and unfair documentary practices such as requiring more documents than required by law to verify employment eligibility.

“The department continues to resolve previously initiated investigations and open new investigations when warranted,” the spokeswoman said. “If the department finds a violation, it takes the appropriate action.”

Unintentional Violations

IER can open an investigation based on a complaint or on its own initiative, and either type of probe can lead to a broad enforcement action.

The settlements show that companies can come into the office’s crosshairs for INA violations that stem from inadvertent as well as intentional discrimination, attorneys said.

That unintentional discrimination can be as simple as an unchecked box or default settings in platforms used by employers for recruitment, said Nicole Kersey, managing director of Kersey Immigration Compliance LLC.

That means companies must use their due diligence before using technology or a third party’s platform to reach potential job candidates.

“They’ve been very clear that employers can’t hide behind software,” Kersey said.

But government investigations were a poor choice when issues with the job postings “could have been taken care of quite easily through education or phone calls with employers clearly confused by the technology,” said Amy Peck, an immigration attorney with Jackson Lewis PC.

With the recent settlements, it was clear there was never any intention for employers to create positions only for US citizens, she said.

Still, companies should take heed when using hiring tools like recruiting platforms, Peck said.

“Employers should be very wary of technology in the employment sphere unless it is vetted by people who understand the legal requirements behind the questions being asked,” she said.

To contact the reporter on this story: Andrew Kreighbaum in Washington at akreighbaum@bloombergindustrygroup.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com