Date: 08-29-2018

Case Style:

Case Number:

Judge: Not Assigned

Court: United States District Court for the Southern District of New York (New York County)

Plaintiff's Attorney: Jodi Danis, Sebastian Aloot, Silvin Dominguez-Reese, and Sejal Jhaveri

Defendant's Attorney: James Paul

Description: Justice Department Settles Immigration-Related Discrimination Claim Against International Law Firm

The Justice Department today announced that it reached a settlement agreement with Clifford Chance US LLP, a large, international law firm with its U.S. headquarters located in New York. This agreement resolves the Department’s investigation into whether the law firm engaged in hiring discrimination by refusing to consider work-authorized non-U.S. citizens and dual citizens to staff a client project, in violation of the Immigration and Nationality Act (INA).

The Department determined that there was reasonable cause to believe that from March 30, 2017, until at least July 7, 2017, Clifford Chance unlawfully restricted its staffing for 36 positions on a document review project based on citizenship status. The Department’s investigation determined that Clifford Chance’s unlawful practice of excluding otherwise qualified non-U.S. citizens and dual U.S. citizens from the document reviewer positions was based on the law firm’s misunderstanding of the requirements of the International Traffic in Arms Regulations (ITAR). The Department found that the law firm improperly terminated or removed three individuals from their positions based on their citizenship status.

The ITAR regulates specific exports of defense articles and services, and – absent State Department authorization – limits access to certain sensitive information to U.S. citizens, U.S. nationals, lawful permanent residents, asylees, and refugees. The ITAR thus does not authorize or require employers to hire only U.S. citizens. Employers that limit their hiring to U.S. citizens without a proper legal basis may violate the INA’s anti-discrimination provision, which prohibits hiring discrimination based on citizenship and national origin.

“Employers subject to the ITAR must be careful not to engage in unlawful discrimination against U.S. workers,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “The Department of Justice is committed to ensuring that employers do not unlawfully exclude U.S. citizens and work authorized non-U.S. citizens from employment opportunities.”

Under the settlement, Clifford Chance will offer to pay lost wages to three individuals who were removed from the project, pay a $132,000 civil penalty to the United States, train relevant employees about the requirements of the INA’s discrimination provision, inform clients who request citizenship status restrictions for staff of the INA’s requirements, and be subject to departmental monitoring and reporting requirements for two years.

The Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. The statute prohibits, among other things, citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation; and intimidation.

More information on how employers can avoid unlawful citizenship status discrimination is available here. For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov (link sends e-mail); or visit IER’s English and Spanish websites. More information on the ITAR is available here.

Applicants or employees who believe they were subjected to: different documentary requirements based on their citizenship, immigration status, or national origin; or discrimination based on their citizenship, immigration status or national origin in hiring, firing, or recruitment or referral, can file a charge or contact IER’s worker hotline for assistance.

Settlement Agreement

THIS SETTLEMENT AGREEMENT (the “Agreement”) is made and entered
into by and between Clifford Chance US LLP (“Respondent”), and the United States
Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section
(“IER”) (together, the “Parties”).
I. BACKGROUND
WHEREAS, on May 9, 2017, IER accepted as complete a charge filed by
(“Charging Party”), DJ# 197-16-492 (the “IER Charge”), alleging that
Respondent terminated the Charging Party because of the Charging Party’s dual
citizenship status in violation of the unfair immigration-related employment practices
provisions of 8 U.S.C. § 1324b;
WHEREAS, on May 17, 2017, IER notified Respondent that it had initiated an
investigation (“IER Investigation”) based on the Charging Party’s allegations to
determine whether Respondent had engaged in any discriminatory conduct in violation of
8 U.S.C. § 1324b, including any pattern or practice of unfair immigration-related
employment practices;
WHEREAS, Respondent notified IER that Respondent put in place the
citizenship–related restriction on a single limited-duration document review project
(“Project”) based on Respondent’s efforts to comply on that Project, in good faith, with
the data access restrictions contained in the International Traffic in Arms Regulation
(“ITAR”), which restricts the disclosure of ITAR-controlled material to anyone who is
not a "U.S. person," as defined in that statute;
WHEREAS, the term “U.S. person” in ITAR means a person who is a lawful
permanent resident as defined by 8 U.S.C. § 1101(a)(20) or who is a protected individual
as defined by 8 U.S.C. § 1324b(a)(3), which includes inter alia citizens or nationals of
the United States, refugees and asylees;
WHEREAS, it is IER’s position that 8 U.S.C. § 1324b does not provide, nor does
the jurisprudence under the law recognize, a good faith exception to the general
prohibition against discrimination on the basis of citizenship status or national origin;
WHEREAS, this Agreement is intended to facilitate the settlement of the IER
Charge and Investigation, and does not constitute an admission by Respondent of any
violation of 8 U.S.C. § 1324b;
2
WHEREAS, IER determined, based upon the IER Investigation, that there is
reasonable cause to believe that Respondent engaged in citizenship status discrimination
in violation of 8 U.S.C. § 1324b(a)(1)(B), resulting in:
A. Respondent’s termination of the Charging Party, and two other individuals,
and (collectively “Other
Injured Parties”) from the Project, causing each to suffer economic harm, and
B. Respondent putting in place two citizenship restrictions on hiring on the basis
of U.S. citizenship and dual citizenship that affected 36 placements.
WHEREAS, the Parties wish to resolve this investigation without further delay or
expense, and hereby acknowledge that they are voluntarily and freely entering into this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained below,
and to fully and finally resolve the IER Investigation as of the date of execution of this
Agreement, the Parties agree as follows:
II. TERMS OF SETTLEMENT
1. This Agreement becomes effective as of the date of the last signature below,
which date is referenced hereafter as the “Effective Date,” and shall have a term
of two years beginning from the Effective Date.
2. Respondent shall pay a civil penalty to the United States Treasury in the amount
of one hundred and thirty-two thousand dollars ($132,000). The monies
discussed in this paragraph shall be paid via FedWire electronic fund transfer
system within ten (10) business days of the Effective Date or Respondent’s
receipt of fund transfer instructions from IER, whichever is later.
3. Respondent shall provide IER with the name, title, email address, and telephone
number of the individual responsible for effectuating payment of the civil penalty
no later than three (3) business days after the Effective Date. On the day of
payment, Respondent shall send confirmation of the payment to Silvia
Dominguez-Reese at Silvia.Dominguez-Reese@usdoj.gov and Sejal Jhaveri at
Sejal.Jhaveri@usdoj.gov. The email confirming payment shall have
Respondent’s name and the investigation number, #197-16-492.
4. The provisions of paragraph two (2) notwithstanding, IER shall not seek from
Respondent any additional civil penalty in connection with the determinations
made by IER herein, including the thirty-six (36) violations of 8 U.S.C.
§ 1324b(a)(1) that are the subject of the IER Investigation through the Effective
Date.
3
5. In accordance with 8 U.S.C. § 1324b and 28 C.F.R. § 68.52, Respondent shall
not discriminate, including by directing any staffing agency or e-discovery
vendor to discriminate, on the basis of citizenship, immigration status or national
origin in violation of 8 U.S.C. § 1324b, or intimidate, threaten, coerce, or
retaliate against any person for his or her participation in IER’s investigation or
the exercise of any right or privilege secured by 8 U.S.C. § 1324b. Nothing
contained in this Agreement shall prevent Respondent from lawfully complying
with the data access restrictions within ITAR, including those that relate to “U.S.
Persons,” during the term of this Agreement and thereafter.
6. Respondent shall remove, and shall not make in the future, any reference to the
IER Investigation or this Agreement in any files or notes it maintains regarding
the Charging Party and Other Injured Parties, or in any other records it maintains
regarding the individuals a third party staffing agency has or will assign to work
for Respondent, and shall not intimidate, threaten, coerce, or retaliate against any
person for his or her participation in IER’s investigation or the exercise of any
right or privilege secured by 8 U.S.C. § 1324b.
7. Respondent shall not disclose to any employer or prospective employer of the
Charging Party or Other Injured Parties any information or documentation related
to the IER Investigation.
8. Respondent shall offer to compensate the Charging Party, and the Other Injured
Parties for lost wages in the following amounts: (1) to Charging Party, the amount
of seven hundred and fifty dollars ($750); (2) to , an amount to be determined
by IER based on information provides, if any, in reponse to the IER Notice
of Settlement letter and accompanying materials which Respondent has reviewed,
and in accordance with the terms of that letter; (3) and to , the amount of
one thousand seven hundred and ninety-two dollars ($1,792).
a. Any monies due shall be paid via certified or cashier’s check payable to the
Charging Party, , and . Checks to the Charging Party and
, and the IER Notice of Settlement letter with accompanying
materials to , shall be mailed, via express delivery service or express mail,
to their respective following addresses, or such different addresses specified
by the Charging Party and Other Injured Parties, within five (5) business days
from the effective date of this Agreement:
4
b. On the same day the payments under paragraph 8(a) are transmitted to the
Charging Party and , Respondent shall send copies of such checks
along with each associated express delivery service tracking number for these
mailings to Silvia Dominguez-Reese at Silvia.Dominguez-Reese@usdoj.gov
and Sejal Jhaveri at Sejal.Jhaveri@usdoj.gov.
c. The release of claims that Respondent requires Charging Party and Other
Injured Parties to sign as a condition of the payment of monies discussed in
paragraph 8 has been reviewed and approved by IER.
9. Within fourteen (14) calendar days from the Effective Date and thereafter for the
term of this Agreement, Respondent shall post the IER “If You Have The Right to
Work” poster (“IER Poster”), in color and measuring no smaller than 8.5” x 11”,
an image of which is available at https://www.justice.gov/crt/workerinformation#
poster, in all places where notices to employees and job applicants
are normally posted in Respondent’s New York City, N.Y. and Washington, D.C.
locations.
10. Within sixty (60) calendar days of the Effective Date, Respondent shall review its
policies, training materials, and/or internal guidelines relating to hiring, firing,
assignment, and/or other nondiscrimination based on citizenship status and
national origin. To the extent necessary and appropriate, Respondent shall revise
its policies, materials, and guidelines to:
a. prohibit unlawful discrimination under 8 U.S.C. §1324b on the basis of
citizenship, immigration status, or national origin in the recruitment, hiring
and firing processes, including in assignment or employment to work on
matters that involve ITAR;
b. include citizenship, immigration status, and national origin as prohibited bases
of discrimination under its policy and any similar Equal Employment
Opportunity (EEO) statements Respondent includes in printed or electronic
materials available to the public or employees, except to the extent otherwise
required or permitted by law;
c. ensure that the Firm Ombudspersons, Director of Human Resources and
Partner members of the Firm’s Personnel Committee (collectively,
“Complaint Recipients”) are instructed to refer applicants and employees who
complain, formally or informally, of discrimination in the hiring or firing on
the basis of citizenship status, to IER by directing the affected individual to
the IER Poster and IER’s worker hotline (800-255-7688) and website
(www.justice.gov/ier);
5
d. instruct the Complaint Recipients on the prohibition against retaliation,
intimidation, or reprisal against an employee or applicant for having opposed
any employment practice made unlawful by 8 U.S.C. § 1324b, or for filing
any charge, or participating in a lawful manner in any investigation or action
under 8 U.S.C. § 1324b; and
e. memorialize the procedures governing the creation and maintenance of the
client log and the client notification process regarding hiring restrictions
referenced in Paragraph 12.
11. Within thirty (30) days of the Effective Date and thereafter during the Term of
this Agreement, Respondent shall, in writing, advise current and any future
staffing agencies and e-discovery vendors with which it contracts through the
D.C. office, that all recruiting, hiring, and firing decisions are subject to, inter
alia, the anti-discrimination requirements of 8 U.S.C. § 1324b.
12. Within forty-five (45) days of the Effective Date and thereafter during the Term
of this Agreement, Respondent shall keep a log of client requests to attorneys,
paralegals, and office managers in Respondent’s D.C. location/office, whose
practice includes or whose work supports Respondent’s Litigation and Dispute
Resolution practice, to place restrictions on hiring or assignment based on
citizenship status. The log shall reflect the following: (1) date of the client’s
request, (2) identity of Respondent employee or official receiving the request,
(3) number of positions restricted, (4) dates of the project or task, (5) basis for the
restriction including a citation to the pertinent rule, law, or executive order or
quoting the pertinent language of the government contract, (6) that Respondent,
per its client notification procedure, provided the client with information about
employer non-discrimination obligations under 8 U.S.C. § 1324b, and, if
applicable, (7) identity of the staffing agency or e-discovery vendor to whom
Respondent made the request to staff any project based on the client’s request.
13. Nothing contained in this Agreement, including Paragraph 12 above, shall require
Respondent or IER at any time to disclose any information protected by attorneyclient
privilege including, when privileged, the identity of the client, attorney
work product privilege, governmental deliberative process privilege, or any other
applicable privileges or confidentiality protections recognized under the laws of
the United States. Similarly, nothing in this Agreement requires or permits either
party to engage in disclosures or other conduct prohibited by applicable
professional responsibility rules, as determined by the choice of law principles
applied by the United States District Court for the District of Columbia.
14. Within sixty (60) calendar days of the Effective Date and on an annual basis from
the date of the initial webinar throughout the Term of this Agreement, all
attorneys, paralegals, and office managers in Respondent’s D.C. location/office
6
whose practice includes or whose work supports Respondent’s Litigation and
Dispute Resolution practice shall participate in an IER-provided free webinar or a
program that includes comparable coverage of the nondiscrimination
requirements of 8 U.S.C. § 1324b (excluding unfair documentary procedures)
provided by Respondent and subject to IER’s prior approval. Respondent may
present a recorded version of IER’s webinar for all attorneys, paralegals, and
office managers in Respondent’s D.C. location/office whose practice includes or
whose work supports Respondent’s Litigation and Dispute Resolution practice
hired in the periods between annual trainings. The training required under this
paragraph shall focus on the nondiscrimination requirements of 8 U.S.C. § 1324b,
and the impact of those requirements on employment restrictions based on
citizenship or immigration status. Moreover, Respondent agrees to include an
explicit reference to 8 U.S.C. §1324b on the US Employment Law section of
Respondent’s website.
15. During the term of this Agreement, IER reserves the right to make reasonable
inquiries of Respondent that are, in IER’s sole discretion, necessary to ensure
Respondent’s compliance with the terms of this Agreement. Subject to the
limitations described in Paragraph 13 with respect to attorney-client and
confidentiality protections, IER’s reasonable inquiries may include but not be
limited to communications between (1) attorneys, paralegals or staff in
Respondent’s D.C. location/office whose practice includes or whose work
supports Respondent’s Litigation and Dispute Resolution practice and (2) staffing
agencies and e-discovery vendors in which those in Respondent’s Litigation and
Dispute Resolution practice provide to a staffing agency or e-discovery vendor
selection criteria that imposes restrictions with respect to national origin or
citizenship or immigration status, for the purpose of nominating document
reviewers for assignment on document review projects. For the avoidance of
doubt, the aforementioned restrictions shall not include requirements for foreign
language fluency.
16. Nothing in this Agreement limits IER’s right to inspect Respondent’s Forms I-9
and attachments within three business days pursuant to 8 C.F.R. § 274a.2(b)(2)ii
and 8 C.F.R. § 44.302(b).
17. This Agreement does not affect the right of any individual to file an IER charge
alleging an unfair immigration-related employment practice against Respondent,
IER’s authority to investigate Respondent or file a complaint on behalf of any
such individual, or IER’s authority to conduct an independent investigation of
Respondent’s employment practices occurring after the Effective Date or outside
the scope of the Investigation.
III. ADDITIONAL TERMS OF SETTLEMENT
18. If IER has reason to believe that Respondent has violated or is violating any
provision of this Agreement, IER may, in its discretion, notify Respondent of the
7
purported violation rather than initiate a new investigation or seek immediate
judicial enforcement of the Agreement. Respondent will then be given thirty (30)
calendar days from the date IER notifies it in which to cure the violation(s) to
IER’s satisfaction before IER deems Respondent to be in violation of this
Agreement and proceeds to take appropriate enforcement actions.
19. This Agreement may be enforced in the United States District Court for the
District of Columbia or any other court of competent jurisdiction. This paragraph,
or the initiation of a lawsuit to enforce the Agreement under this paragraph,
including any counterclaims asserted, does not constitute and should not be
construed as a waiver of sovereign immunity or any other jurisdictional or legal
defense available to the United States. The Parties agree that the paragraphs set
forth in Part II of this Agreement (entitled “Terms of the Settlement”) contain
material terms, without waiver of either Parties’ right to argue that the other terms
in the Agreement are material.
20. IER will not offer this Agreement as evidence of liability in a legal proceeding or
action except if required to do so by law, and IER retains the right to use this
Agreement in any legal proceeding or action to enforce the terms of this
Agreement.
21. The Parties agree that, as of the Effective Date, litigation concerning the alleged
violations of 8 U.S.C. § 1324b that IER has found is not reasonably
foreseeable. To the extent that any party previously implemented a litigation hold
to preserve documents, electronically stored information, or things related to this
matter, the party is no longer required to maintain such a litigation hold. Nothing
in this paragraph relieves either party of any other obligations imposed by this
Agreement.
22. Should any provision of this Agreement be declared or determined by any court to
be illegal or invalid, the validity of the remaining parts, terms or provisions shall
not be affected thereby and said illegal or invalid part, term or provision shall be
deemed not to be a part of this Agreement. The Parties agree that they will not,
individually or in combination with another, seek to have any court declare or
determine that any provision of this Agreement is invalid.
23. The Parties shall each bear their own costs, attorneys’ fees, and other expenses
incurred in this action.
24. This Agreement sets forth the entire agreement between the Parties and fully
supersedes any and all prior agreements or understandings between the Parties
pertaining to the subject matter herein. This Agreement is governed by the laws
of the United States. This Agreement shall be deemed to have been drafted by
both Parties and shall not be construed against any one party in the event of a
subsequent dispute concerning the terms of the Agreement.

Outcome: See above

Plaintiff's Experts:

Defendant's Experts:

Comments: