By: Liz Rita
Discrimination based on immigration status or national origin is a nuanced area of workplace investigations. These claims often arise at the intersection of employment law, DEI efforts, and company culture—and they can be some of the most complex to investigate. Whether it’s a complaint about offensive comments, biased decision-making in hiring or promotion, or the improper use of E-Verify, investigators must approach these matters with clarity, sensitivity, and rigor.
Here are five tips for conducting thorough, fair, and compliant investigations in this space:
- Start by Distinguishing the Basis of the Complaint
Immigration status and national origin are distinct—but often conflated—legal concepts. Under Title VII of the Civil Rights Act, national origin discrimination refers to treating individuals unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background.
By contrast, immigration status discrimination—regulated in part by the Immigration and Nationality Act (INA)—involves treating someone less favorably because of their citizenship or immigration status.
In early fact-finding, clarify: Is the allegation about cultural bias? Language barriers? Work authorization? The answer will help guide your legal framework and investigative approach.
- Assess for Subtle but Impactful Bias
Discrimination isn’t always overt. Subtle forms of bias—mocking an accent, expressing surprise at someone’s “good English,” or making offhanded comments about immigration policy—can create a hostile environment even without explicitly discriminatory intent.
Ask witnesses about patterns, tone, and context. Don’t just track down “smoking gun” evidence—look for how behaviors land on the employee, especially if they’re part of a marginalized or historically excluded group.
- Handle Documentation and Verification Issues with Care
In some cases, complaints arise around I-9 or E-Verify procedures. Employers can verify work authorization, but must avoid over-documentation, selective re-verification, or holding foreign-born workers to different standards than U.S.-born counterparts.
Investigators should review whether HR followed consistent practices. If a manager demanded extra documentation only from an employee with an accent or foreign-sounding name, that’s a red flag. Consult DOJ’s Immigrant and Employee Rights Section guidance when needed.
- Pay Attention to Retaliation Risks
Claims involving immigration status may come with heightened fear of retaliation. Workers on visas or those with undocumented family members may feel particularly vulnerable when speaking up.
Investigators should emphasize confidentiality, avoid unnecessarily disclosing sensitive information, and check in more than once to assess for subtle forms of retaliation (e.g., shift changes, isolation, increased scrutiny).
- Document Cultural Context Without Drawing Conclusions
In national origin and immigration-related claims, the “how” behind a statement or action can matter as much as the “what.” Cultural misunderstandings, differences in communication style, or implicit assumptions may be at play—and it’s not the investigator’s role to interpret intent or educate, but to capture the facts fully and fairly.
That means documenting not just what was said or done, but also how it was received, who else was present, and whether similar behavior occurred with others outside the complainant’s identity group. Carefully noting demeanor, tone, and context—without editorializing—helps ensure your findings are accurate, complete, and legally defensible.
Final Thought
When investigating claims related to immigration status or national origin, neutrality and cultural competency are critical. These matters often touch identity, belonging, and legal vulnerability—so how you ask questions, what you document, and how you close the loop matters deeply.
By staying grounded in both law and empathy, investigators can help ensure accountability and trust in investigating these complex situations.