Federal spotlight: DOJ proposes new discrimination rule
September 15, 2016
The Department of Justice (DOJ) issued a notice of proposed rulemaking expanding its authority and investigative power over employment discrimination and the employment eligibility verification process. Specifically, the proposed rule seeks to, among other things, expand the scope of activities during the employment verification process that could be deemed "discriminatory" a well as the definition of "discriminatory intent," for employers. Additionally, the rule would repeal the statute of limitations by expanding the current time bar of 180 days to five years in which DOJ is able to bring an investigation against employers for alleged discrimination based on a variety of grounds including citizenship, immigration status, national origin discrimination and unfair documentary practices.
Under the current law and practice, employers are found to have engaged in discriminatory behavior if there is intent to discriminate. This rule would essentially remove the requirement to show an employer’s intent. Further, it appears that extending the statute of limitations will give DOJ the leeway to keep investigations going in perpetuity, giving the agency even more leverage to force employers to settle for large sums of money.
The comment period closes on September 14. If you would like to weigh in on the effects of this rule, or to submit comments, please contact Nicole Crain.