New DOJ Rule Increases Employer Exposure to Immigration-Related Discrimination Claims

Beginning January 18, 2017, a new DOJ rule broadens the definition of discrimination to include any intentional treatment differentiating between employees because of national origin or citizenship, regardless of the reason for differentiation.  As well, the definition of “hiring” is broadened to include the recruitment process.  Under the new rule, the Department will have up to five years from the time of an alleged violation to file a complaint or conduct an investigation, in contrast to the previous limit of 210 days. DOJ investigative power is expanded both as to the information it may access and from whom. The new rule imposes liability for differentiation between employees on the basis of national origin or citizenship even when no adverse action is involved.  (81 Federal Register 91769.)

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