Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 2, 2021, Illinois enacted House Bill 0121 (Bill) that – effective immediately – adds a provision to the Illinois Human Rights Act (IHRA) making it a civil rights violation for discriminating against employees and job applicants based on their “work authorization status[.]”1 Under the Bill, “work authorization status means the status of being a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States.” As such, the IHRA now prohibits discrimination, harassment, and retaliation based on this protected category. According to the Illinois Department of Human Rights, “the change in law aligns protections in the IHRA with those already in federal law.”2
To that end, similar protections will not be foreign to employers familiar with federal laws that prohibit unlawful employment practices based on national origin, citizenship status, and in verifying employment status.3 For example, under the Immigration and Nationality Act (INA), it may be an unfair immigration-related employment practice to consider the date when an employment authorization will expire in determining whether an individual is qualified for a particular job.4 Nevertheless, federal protections from citizenship discrimination in recruitment, hiring, and firing extend to a subset of work-authorized individuals that excludes anyone who requires employer sponsorship for a visa or temporary visa holders.5
House Bill 0121, however, was enacted with an eye toward preventing “discrimination based on the specific status or term of status that accompanies a legal work authorization.”6 Specifically, it is a civil rights violation for an employer to “refuse to honor work authorization based on the specific status or term of status that accompanies the authorization to work[.]” Proponents of the Bill have explained that it is a response to recent employment discrimination lawsuits alleging employers refused to hire Deferred Action of Childhood Arrivals (DACA) recipients and it therefore seeks to prohibit discrimination based on federal work authorization status, without regard to how or why they obtained their work authorization.
The practical implications of the Bill present unique challenges for employers operating in Illinois. Here are some key takeaways and strategies for employers to consider in order to remain compliant with the evolving IHRA:
- Avoid gathering information about individuals’ specific work authorization status beyond what is needed to establish whether the individual has federal employment authorization.7
- Review application forms, interview templates, hiring metrics, and evaluation guidelines used for Illinois operations to determine whether they call for a response that would identify individuals’ employment status or rely on that status for evaluation purposes. If they do, consider whether the question is specifically targeted to a clearly defined essential business purpose – or if it can be eliminated altogether.
- Update Illinois employee handbooks, non-discrimination policies, and non-discrimination training materials to clearly communicate a policy of non-discrimination against individuals’ work authorization status.
- Avoid making any adverse employment decision based solely on an individual’s specific work authorization status. For example, do not refuse to hire a qualified individual who is federally authorized for employment solely because their authorization may expire at some later date. Rather, employers should ensure that employment decisions for positions with designated or extended time-frames are directly aligned with clear business objectives.
1 Pub. Act 102-0233 (eff. Aug. 2, 2021) (available at https://ilga.gov/legislation/publicacts/102/102-0233.htm) (last accessed Aug. 11, 2021).
2 See Illinois Department of Human Rights, Work Authorization Status Protection, https://www2.illinois.gov/dhr/Pages/Work-Authorization-Status-Protection.aspx (last accessed Aug. 11, 2021).
3 See Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e-2 et seq.; Immigration and Nationality Act, 8 U.S.C. § 1324b.
4 See 8 U.S.C. § 1324b(a)(6); The United States Department of Justice, Frequently Asked Questions, https://www.justice.gov/crt/frequently-asked-questions-faqs#tempvisa (last accessed Aug. 11, 2021).
5 8 U.S.C. § 1324b(a)(3).
6 775 ILCS 5/1-102(C-5) (Declaration of Policy). 775 ILCS 5/1-102(C-5) (Declaration of Policy).
7 Illinois Senate Democrats, News, https://www.illinoissenatedemocrats.com/caucus-news/46-senator-ram-villivalam-news/2537-villivalam-moves-to-end-employment-discrimination (last accessed Aug. 11, 2021).