The Honorable Lamar Smith, Chair
Committee on the Judiciary
House of Representatives
2138 Rayburn House Office Building
Washington, DC 20515
The Honorable John Conyers, Jr., Ranking Member
Committee on the Judiciary
House of Representatives
B-351 Rayburn House Office Building
Washington, DC 20515
Re: Legal Workforce Act
Dear Chairman Smith and Ranking Member Conyers:
We write to express our concerns about the Legal Workforce Act (HR 2885), and how the Act may lead to discrimination against minorities and foreign-born US citizens, running afoul of US obligations under US law and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).[1] We urge you to amend the Act and build in strong protections against racial, ethnic, or national origin discrimination.
E-Verify, as you know, is a computerized employment eligibility program that is currently voluntary under federal law. Under E-Verify, an employer submits eligibility information about a new employee into a computer system. The system either confirms the prospective employee’s eligibility to be employed or issues a “tentative non-confirmation” (TNC). The employer must then notify the new employee about the TNC. If the new employee does not contest the determination within eight days, the employer must fire the new employee. The Legal Workforce Act seeks to expand E-Verify into a nationwide program mandatory for most employers.
In a December 2010 report,[2] the Government Accountability Office (GAO) reported several concerns about the E-Verify program. The report stated that currently, the E-Verify system may be issuing erroneous TNCs disproportionately to people of “Hispanic or Arab origin” who have multiple surnames that may be recorded differently on different identification documents.[3] According to the GAO, “[e]rroneous TNCs resulting from such inconsistencies can create the appearance of discrimination because of their disparate impact on certain cultural groups.”[4]
In site visits for their report, the GAO also reported that several employers commented that TNCs were more likely to occur for Hispanic employees with “hyphenated or multiple surnames.”[5] The GAO also cited a study showing that TNCs were 20 times more likely for authorized workers who were foreign-born compared to workers born in the United States.[6]
The GAO expressed concern about the de facto changes in treatment faced by foreign-born legal workers and US citizens of Latin American or Middle Eastern origin as a result of E-Verify. GAO corroborated this concern with survey results of employers involved in the E-Verify program who admitted that they in fact engaged in activities such as restricting work assignment, pay cuts, and delayed training.[7] GAO also expressed concerns that, without training, employers would fail to notify new employees of their full rights and recourses after receiving a TNC.
Congress should not approve a government-based employment system that disproportionately impacts workers due to their race, ethnicity or national origin. Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire or discharging any individual on the basis of the individual’s “race, color, religion, sex, or national origin.”[8] Article 5 of the ICERD requires states to guarantee the right to work and to free choice of employment without distinction as to race, color, or, national or ethnic origin.
The Committee on the Elimination of Racial Discrimination, the expert body created by the ICERD to monitor state compliance with the convention, has expressed concern about the US record in its protection of workers belonging to minority groups. It stated in 2008 that US “workers belonging to racial, ethnic and national minorities… continue to face discriminatory treatment and abuse in the workplace.”[9] The committee recommended that the United States take all measures “to combat de facto discrimination in the workplace and ensure the equal and effective enjoyment by persons belonging to racial, ethnic and national minorities of their rights under article 5 (e) of the Convention.”
We hope the Judiciary Committee carefully considers its responsibility to not discriminate against workers in the United States as it debates this measure.
Sincerely,
Antonio M. Ginatta
Advocacy Director, US Program
Human Rights Watch
[1] International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on November 20, 1994.
[2]US Government Accountability Office,“Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain”, December 2010.
[3]Ibid., p. 19.
[4]Ibid.
[5]Ibid.
[6]Ibid., p. 40.
[7]Ibid., p. 41.
[8]42 USC 2000e-2.
[9]UN Committee on the Elimination of Racial Discrimination, “Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America,” CERD/C/USA/CO/6 (May 2008).
