U.S. Department of Justice Letter (05/12/12)

The U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has replied to a company’s inquiry about how staffing firms should respond to employers that make discriminatory staffing requests based on citizenship status.

If an employer requesting temporary labor makes a discriminatory request and the staffing firm complies with the request, each entity may be liable for discrimination under the Immigration and Nationality Act, according to Seema Nanda, acting deputy special counsel at OSC. Depending on the facts, liability may accrue to the staffing company either as an employer of the individual who is not placed based on the client’s discriminatory request, or as a recruiter or referrer for a fee. A staffing company may also face liability for discriminating in the placement process if it is considered a joint employer. Accordingly, DOJ discourages a staffing firm from complying with a client’s request that the staffing company provide “U.S. citizens only” or a similar discriminatory request unless required by law, regulation, executive order, or government contract.