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In the News Suffolk Bill Will Lead to Massive Discrimination

By Patrick Young, Esq. Program Director CARECEN February 11, 2008 10:22 AM

The new anti-immigrant bill in Suffolk County could hurt a lot of people. One of the largest groups that will be harmed are the county's legal immigrant and native-born Latino population.

The Federal government has documented that employer sanctions, by creating a fear of being penalized for hiring the undocumented, has led to widespread discrimination against Latinos and others who are legally eligible to work. The Suffolk proposal, by imposing new requirements on employers and by substantially increasing penalties, is likely to exacerbate the problem of discrimination.

It is extremely important for the legislature to examine the discriminatory impact the proposal is likely to have on legally-present, work eligible, Latinos, Asian Americans and others who might appear to potential employers to be foreigners. I am not talking about the potential impact of the bill on the undocumented, but rather on U.S. citizens, lawful permanent residents, and other legally work authorized persons.

When Congress passed the original employer sanctions law back in 1986, it required that a study be done of the laws possible discriminatory impacts. Congress was correct in believing that employer sanctions would result in discrimination. Employer sanctions, while ostensively aimed at the undocumented, has led to extensive discrimination in hiring against employment authorized Latinos, Asian Americans and others who appear to be foreign born.

In the most comprehensive study of the impact of employer sanctions, the non-partisan General Accounting Office (GAO) of Congress conducted a three year long examination of the impact of the law on discrimination. When the employer sanctions legislation was passed, Congress mandated that GAO determine whether widespread discrimination has resulted solely from the law. [GAO Report to Congress Immigration Reform and the Question of Discrimination March 1990 at page 37] The GAO employed six different methodologies to answer this question, including a national employer survey, a hiring audit, a survey of job applicants in five cities, and an analysis of complaints with the Office of Special Counsel of the Justice Department.

Based on employer survey, the GAO concluded that employer sanctions had resulted in a widespread pattern of discrimination. [Id.] According to the report, [t]his pattern existed across a variety of industries in all areas of the Nation and among employers of various sizes. [Id.] The GAO went on to say that the other three methodologies named above further supported our widespread pattern determination. [Id.]

The most damning evidence came from the employers themselves. Employers were asked in a national survey if they had begun any of a several illegal discriminatory practices subsequent to the passage of the employer sanctions law. The GAO survey of a random sample of [American] employers show that an estimated 891,000 employers (19 percent) of the 4.6 million in the population surveyed reported beginning discriminatory practices because of the law. [Id. at page 38] These illegal practices included hiring only persons born in the United States (14.7%), not hiring persons who appeared to be foreign born or who had accents (6.6%), not hiring those with Puerto Rican Birth certificates (1.8%) or refusing to accept some valid work authorization documents issued by the INS while accepting others (13.0%). [Id. At pages 38, 39, and 120] Since these survey relied on employers to self-report discrimination, the actual level of discrimination may have been higher. [Id at page 129]

These discriminatory practices were not restricted to any one area of the country, but were particularly serious in areas of the U.S. with high concentrations of immigrants. In New York City, for example, 21% of employers began discriminatory practices after the passage of the employer sanctions law. [Id.]

The GAO also conducted a hiring audit in which pairs of testers (one Hispanic and one a non-Hispanic White) who were closely matched on those characteristics that might affect the hiring decision, applied for the same entry level jobs. The audit observed the hiring practices of 360 employers. [Id. At page 46] According to the GAO the hiring audit results show a high level of national origin discrimination. The hiring audit showed that the Hispanic testers were three times as likely to encounter unfavorable treatment when applying for jobs as were closely matched Anglos. [Id at page 47] Although the discrimination encountered during the hiring audit might not entirely be due to the employer sanctions provision, the GAO concluded that employer sanctions had exacerbated an already serious problem of national origin discrimination. [Id. At page 49]

The GAO found that employers, fearing penalties for violating the employer sanctions law, had adopted discriminatory practices due, in part, to a lack of understanding of the law itself, and difficulty in navigating the complex documentation allowing for unlawful employment. [Id. At page 60] Rather than risk penalties, employers decided to play it safe and not hire persons who appeared to be foreigners. Playing it safe led to massive illegal discrimination.

A 1989 report from the New York City Human Rights Commission based on a hiring audit backed up the conclusions reached by GAO when it found that the employer sanctions provision had resulted in widespread discrimination against those perceived to be immigrants in New York City. [Tarnishing the Golden Door The City of New York Commission on Human Rights, August 1989]

This massive discrimination promoted by the Federal employer sanctions law could be completely overshadowed by discrimation as a result of passage of the Suffolk bill. The Federal law mposed a system of warnings and fines. Suffolk, on the other hand, would impose the business death penalty for violations. Violation of the law could result in a loss of license for an offender, essentially closing the business down. What an incentive to discriminate!

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