At his Senate confirmation hearing on January 10, 2017, Senator Sessions agreed with Senator Grassley that outsourcing the jobs of a U.S. IT workers to lower paid H-1B visa holders constitutes de facto national origin discrimination under the Immigration and Nationality Act (INA). Senator Sessions further testified that if confirmed he would direct the Office of Special Counsel (OSC) within the Civil Rights Division at the Department of Justice (DOJ) to investigate and prosecute U.S. employers who enter into outsourcing contracts utilizing foreign visa holders.
Senators Grassley and Sessions are wrong on the law and any attempt to use the powers of the Attorney General to conduct a witch hunt against U.S. employers who outsource jobs for legitimate non-discriminatory reasons — including to reduce labor costs — would constitute an abuse of power by the Attorney General.
The anti-discrimination provisions of the INA require proof of an employer’s intent to discriminate in hire or termination against an applicant or employee based on national origin, i.e., ancestry or place of birth. Business outsourcing decisions made with the intent to achieve labor cost savings, improve efficiencies, keep pace with innovation and/or remain competitive do not violate the antidiscrimination provisions of the INA. Simply stated, where an employer has documentation establishing the non-discriminatory business reasons for outsourcing, DOJ (or an individual complainant) would be unable to prove unlawful discrimination on the basis of national origin.
Moreover, the Attorney General has no jurisdiction to investigate or prosecute employers of 15 or more employees for alleged national origin discrimination in hire or termination; jurisdiction over claims against employers of 15 or more lies exclusively with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1965, as amended — and then only pursuant to a timely charge of discrimination filed by or on behalf of an aggrieved individual. Hence, any attempt on the part of the Attorney General to utilize his authority to direct an investigation against such an employer for outsourcing work to H-1B workers in violation of the national origin discrimination provisions of the INA would itself be outside the law — and would provide a sound legal basis for refusing to respond to a DOJ administrative subpoena or otherwise cooperate with such an investigation.
While the Trump Administration and its congressional allies may pursue legislation that would block or restrict the use of temporary visa holders in business outsourcing, and otherwise enhance the enforcement powers of various federal agencies for perceived violations of the laws and regulations governing the employment of foreign temporary workers, existing law clearly does not support Senator Sessions’ stated intent to use the office of Attorney General to threaten or intimidate U.S. employers for engaging in legitimate business outsourcing.