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"Employer Discrimination Against Immigrants and Refugees"

September/October 1993 issue of Poverty & Race

President Bill Clinton and other policy makers have recently reiterated their support for increased enforcement of employer sanctions to help deter undocumented immigration. However, as our recent study, the National Employer Survey Project, has shown, employer sanctions implementation has been fraught with numerous violations and discriminatory practices, and renewed efforts to beef up enforcement appear destined simply to enhance employer discrimination against immigrants and other minority workers. Together with other studies showing that sanctions have little or no impact on mitigating undocumented immigration, it is clear that government resources would be better spent enforcing labor law protections and standards.

In November 1986, Congress passed the Immigration Reform and Control Act (IRCA), sweeping legislation that had been hotly debated for several years. Working with the premise that undocumented immigrant workers were "taking jobs away from Americans," Congress aimed to mitigate illegal immigration by a combination of increased border enforcement and introduction of "employer sanctions." These sanctions established penalties for employers who continuously hire undocumented workers. Theoretically, these sanctions would deter employers from such hiring, thereby cutting off a source of jobs that are the "magnet" for undocumented immigrants. Congress also included an anti-discrimination measure in response to charges what employers fearing sanctions might incriminate against employees who "looked" or "sounded" foreign.

By most accounts, employer sanctions have been a failure. Both government and independent studies have criticized the apparent lack of impact sanctions have had on the flow of undocumented immigration into the U.S. In addition, a 1990 General Accounting Office report concluded that employer sanctions have caused "widespread discrimination."

In February 1991, the National Network for Immigrant and Refugee Rights coordinated an investigative delegation to Washington, D.C., to speak with law-makers and advocates concerning the impact of employer sanctions. From those discussions emerged a proposal to conduct an independent study to continue the monitoring of employer sanctions and produce current documentation for policy advocacy.
After considering various types of studies, the National Network and several local member organizations decided to coordinate a survey of employers in key cities, using as a model a survey conducted in 1989 of San Francisco employers by the Coalition for Immigrant and Refugee Rights and Services and the Public Research Institute at San Francisco State University. Rather than rely on material provided in previous "advocate-based" reports, such as anecdotal information from anti-discrimination "hotlines," the conduct of an employer-based survey seemed better able to identify trends, spotlight spec problem areas and provide fresh statistical data. There was considerable discussion about the credibility of a report conducted by advocate groups. Participants agreed that while there would be detractors, a carefully conducted, substantiated survey and report could be produced.

With funding from PRRAC and, later, the Limantour Fund in San Francisco, the survey was conducted in May, 1992 in San Francisco, Los Angeles, New York and Chicago. Several other cities were considered, but lack of resources and scheduling difficulties forced cancellation of the study in those areas. The project was truly collaborative: survey interviews were coordinated in the four cities by the Coalition for Immigrant and Refugee Rights and Services (CIRRS) in San Francisco; the Center for Immigrant Rights (CIR) in New York; Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA); and the United Network for Immigrant and Refugee Rights (UNIR) in Chicago. In addition, the New York City Human Rights Commission played an important role in the project, sending initial contact letters to the randomly selected businesses in each of the four cities, and eventually centralizing the database to produce a preliminary findings paper. The final report is now being drafted by Ximena Delgado, a CIRRS intern.

The survey's aim was to identify patterns, similarities and dissimilarities among employer practices in the four cities six years after passage of IRCA. The survey considered the effectiveness of employer education efforts; employer knowledge of employee documents and use of the I-9 form, which employers must keep on file for employees hired after Nov. 6, 1986, the date the law was passed; and the significance of "ethnic appearance" and foreign accent in hiring.

The 400+ employers eventually surveyed were randomly generated in each city from citywide employer lists, and proportionately represented employers with 415 employees, 16-40 employees, 41-100 employees, 101-250 employees, and 251+ employees.

Some of the key survey findings were:

Continued high levels of discrimination.

Issuance of the "INS Handbook" did not mitigate levels of discrimination - in fact, employers who had seen the Handbook had relatively higher levels of discriminatory practices.

Over one-third of employers considered Latinos, Asians or Caribbeans "riskier to hire."

Discriminatory practices were generally more prevalent among smaller employers.

A third of the employers interviewed responded that they were not very familiar with the I-9 form. The data also revealed that a large proportion of employers had never even used the form. The proportion was greatest among small firms (415 workers); nearly 50% had never used it.

The conduct of the survey had been postponed until after the INS had completed a redistribution of the INS Handbook in early 1992. However, 38% of the employers said they had never seen the Handbook or used any other form of information to find out about the requirements to fill out the 1-9 form. Nearly 7 out of 10 small firms (415 workers) claimed never to have received the INS Handbook, compared to 33% of firms with 101 or more workers. (Al-though percentages may be higher among smaller firms, discriminatory practices may affect many more workers among the large companies.)

Certain discriminatory practices were not significantly reduced through use of the INS Handbook and/or other sources of information. When employers were asked whether the firm would require any other documentation after a job seeker had presented a driver's license or ID card and a Social Security card, 32% said they would require additional documents, a violation of INS guidelines.

Small- and medium-size companies - those with 100 or fewer workers-displayed higher rates of discriminatory practices, less understanding of IRCA regulations and less use of the I-9 form. Despite IRCA provisions to the contrary, slightly over half of the respondents stated that they did request to see some form of work authorization (e.g., a permit issued by INS or a Social Security card) before hiring a new employee. This practice was reported among 75% of the small size firms, 55% of the 41-100 worker size, and 35% of firms with over 250 workers. Among those requesting work authorization before hiring, 56% said that when an applicant has a foreign accent or appearance, they want to make sure they are authorized to work before they are hired. Thirty percent of the respondents said that they required workers to show their employment authorization again after they return from a lay-off.

Overall, almost half of the employers stated that workers who speak limited English are riskier to hire. More than one out of three employers believed Latinos, Asians or Caribbeans are riskier to hire.

One in every six employers acknowledged having turned applicants away because their documents seemed fake.

The survey also showed that "grand-fathered workers," those hired before the passage of the bill and who are not affected, have been victims of employer abuse. (Many employers would not answer these questions.) Over one-third of 'the respondents said they required workers hired before November 1986 to show proof of employment authorization.

Other violations:

More than 55% of the employer said they do not accept any INS documents other than the work authorization permit issued by the agency.

A staggering 78% of the employer said they require all new employees t show their Social Security card.

More than 56% of all employers said they decide which work authorization documents the employee should use t fill the I-9 form.

Almost one-third of all employer said they would require additional documents if a job seeker presented a driver license or ID card and a Social Security card.

Two-thirds of employers said the photocopied documents showing work authorization presented by the worker.

Initial Conclusions and Recommendations

In conducting the survey, there were many instances of turnover of personnel responsible for hiring, and many smaller businesses reported that they had never received any information from the INS. Even after almost seven years, a consistent and comprehensive outreach to various businesses is lacking and has an uneven impact.

Employer education efforts have n prevented many instances of discrimination and/or non-compliance. Despite targeted employer education effort there were numerous incidents of no compliance and discrimination. Access to information on IRCA regulations did not seem to drastically reduce discriminatory practices - in fact, employers appear to be more fearful of sanctions and economic hardship and are more suspect of immigrant and minority workers once they read the INS Handbook. In these four cities with large immigrant populations, over one-third of the employers believe that Latinos, Asians, or Caribbeans are riskier to hire - a belief held regardless of whether or not the employer had seen the INS Handbook. This attitude by employers presumably would have considerable im-pact on "new and improved" employer sanctions proposals, such as establishment of a "secure" national identification card. With these kinds of employer beliefs, regardless of "secure" identification provided, immigrant and other minority workers are likely to be considered risky employees and denied a fair chance for a job.

The survey findings certainly support the need to repeal the employer sanctions provision of IRCA, not to continue enforcement. At the same time, the survey shows the need for more attention to enhancement and enforcement of labor and other anti-discrimination laws, to curtail and eliminate all forms of employer discrimination.

Follow-up Advocacy Work

The final report of the survey will b sent to policy makers, civil rights organizations, unions and other groups, as well as to the media. Advocates will use the survey results to argue against continuation of the failed employer sanctions experiment. President Clinton recently renewed interest in employer sanctions by announcing that he will strengthen sanctions enforcement, relying on existing mechanisms to deter undocumented immigration, rather than endorsing more extreme measures, such as those proposed by California Governor Pete Wilson. However, the survey results indicate that even increased employer education and the addition of a new "secure" national identification card cannot remedy the levels of prejudice and purposeful discrimination by employers against "foreign-looking" or ?sounding" workers.
Some information from the survey has already been made public during the current frenzy over immigration. Media activities on the survey findings will be organized nationally and in each of the four participating cities upon publication of the final report. Because the survey is one of the most current studies of the impact of employer sanctions, a preliminary report has also already been provided to various government bodies looking into the impact of employer sanctions.

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