Washington, DC - Marking 35 years since Congress passed the anti-discrimination provision of the Immigration and Nationality Act (INA), the Department of Justice Monday announced a settlement with Gap Inc. (Gap), resolving claims that Gap violated this law by routinely discriminating against certain non-U.S. citizens working for the company.

“Thirty-five years ago, Congress passed a law prohibiting employers from discriminating against workers because of their citizenship, immigration status, or national origin, and from retaliating against them for asserting their rights,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “The division continues to vigorously enforce the law – holding thousands of employers accountable for violations, collecting millions of dollars in civil penalties and back pay and obtaining relief for countless victims of discrimination. This settlement with Gap underscores the division’s work over the last 35 years to end unlawful employment discrimination.”

The settlement with Gap resolves claims that the company discriminated against certain non-U.S. citizens (including lawful permanent residents, refugees and asylees) and naturalized U.S. citizens because of their current or prior immigration status. The department found that Gap discriminated against workers by reverifying their permission to work, even though there was no legal reason to do so. The department also determined that Gap discriminated against some non-U.S. citizens because of their immigration status by requesting that they provide specific documents to confirm that they still had permission to work. The department concluded that Gap’s reliance on an electronic human resource management system (which had electronic Form I-9 functions) contributed to the company’s discriminatory conduct. As part of the settlement, Gap will pay $73,263 in civil penalties, provide back wages to an asylee and a lawful permanent resident who lost work because of Gap’s practices, train thousands of its employees nationwide, ensure that its electronic programs are compliant with applicable rules, and be subject to monitoring and reporting requirements.  

The INA prohibits employers from unnecessarily reverifying a worker’s permission to work, or specifying the types of documentation a worker is allowed to show to prove permission to work, because of the worker’s citizenship, immigration status or national origin. As a result, even when an employer has a legal requirement to check that a worker still has permission to work, the employer must allow the worker to present whichever acceptable documentation the worker chooses.

In the past five years alone, the division’s Immigrant and Employee Rights Section (IER) has reached more than 100 settlements to resolve discrimination claims under the INA. In addition to resolving claims involving discrimination in verifying an employee’s legal permission to work, the division has worked tirelessly to resolve matters involving employers that refused to hire non-U.S. citizens because of their immigration status; disqualified workers from consideration based on their national origin; rejected U.S. workers due to a preference for temporary visa holders; and retaliated against workers for asserting their legal rights. Just last month, the division secured a landmark settlement with Facebook resolving claims that the company discriminated against U.S. workers (including U.S. citizens, U.S. nationals, asylees, refugees and recent lawful permanent residents) because it had a hiring preference for temporary visa holders for certain positions. As part of its enforcement program, over the last five years, the division has secured more than $11.5 million in back pay for discrimination victims under the INA.