The information on this webpage is not intended to be a final agency action, has no legally binding effect, and has no force or effect of law. This webpage may be rescinded or modified at the Department’s discretion, in accordance with applicable laws. The Department’s guidance documents, including this webpage, do not establish legally enforceable responsibilities beyond what is required by the terms of the applicable statutes, regulations, or binding judicial precedent. For more information, see "Memorandum for All Components: Prohibition of Improper Guidance Documents," from Attorney General Jefferson B. Sessions III, November 16, 2017.
What is the Immigrant and Employee Rights Section (IER)?
What type of employer conduct does the Immigration and Nationality Act's (INA) anti-discrimination provision prohibit?
How do I file a charge with IER?
Can I report a violation of the anti-discrimination provision without filing a charge?
How can I contact IER for assistance?
How does IER's hotline work?
Can an IER staff member speak at my upcoming live presentation?
Who is the IER point of contact for inquiries from the media?
Which documents may I show my employer to establish my identity and employment eligibility?
If I don't have a document from the Lists of Acceptable Documents, can I show my employer something else?
If a worker records a USCIS or Alien Number on the Form I-9, does an employer need to see, or can it ask for, a document with that number?
My new employer is requiring me to provide an expiration date for my status as a refugee in Section 1 of the Form I-9. Do I have to provide an expiration date in Section 1?
May an employer ask an employee to present a Social Security card for payroll (and not I-9) purposes?
Does an employer need to see a worker's Social Security card to make sure that the Social Security number completed in Section 1 is correct?
My employer asked me to verify my employment eligibility by showing a document issued by the Department of Homeland Security because I am not a U.S. citizen. Is my employer allowed to do this?
A job applicant presented an Employment Authorization Document that expires next month. As an employer, I don't want to train the worker without an assurance that the worker will still be employment-authorized in the future. May an employer reject the applicant for employment due to the uncertainty of continued employment authorization?
A worker has presented an employer with a document that looks fake. Can an employer refuse to accept it without violating the anti-discrimination provision?
A worker's DHS-issued employment authorization document expired and the worker wants to show a Social Security card for reverification. Does the employer need to see a current DHS document?
Does an employer need to reverify the work authorization of lawful permanent residents who produce a "green card" with a future expiration date?
If I am a lawful permanent resident, do I need to show my employer a new unexpired Permanent Resident Card, when the card expires?
I have Temporary Protected Status (TPS), and the Department of Homeland Security extended my Employment Authorization Document for six months. My employer insists that I show an unexpired card to continue working. Do I need to?
When my employer created an E-Verify case with my information, I received a tentative nonconfirmation (TNC) and notified my employer that I have decided to take action to resolve the TNC. I have work authorization but my employer told me that I can start working only after I resolve my TNC. Is my employer allowed to do this?
Is an employer that participated in E-Verify allowed to terminate or suspend an employee who decides to contest a tentative nonconfirmation (TNC), based on the TNC?
If a worker's name and Social Security number don't match the Social Security Administration's (SSA) records, should the employer automatically conclude that the worker is not authorized to work?
I was rejected for a job because I am not a U.S. citizen. Is this citizenship status discrimination?
I was rejected for a job because the employer only likes to hire workers on temporary visas. Is the employer allowed to do this?
If my company engages in activity regulated by the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR), does the ITAR or the EAR require me to hire only U.S. citizens?
I applied to a job with a small employer, and it refused to hire me due to my national origin. Is that employment discrimination?
I applied for a job with a small employer and was informed that to be hired I would need to speak English without a foreign accent. Is this legal?
Q. What is the Immigrant and Employee Rights Section (IER)?
A. The Immigrant and Employee Rights Section (IER) of the Justice Department's Civil Rights Division enforces the anti-discrimination provision of the Immigration and Nationality Act (INA). The regulations for this law are here. This law protects work-authorized individuals from employment discrimination in hiring, firing, and recruitment or referral for a fee based upon citizenship, immigration status, and national origin; unfair documentary practices when verifying employees' employment eligibility (Form I-9 and E-Verify); and retaliation. Individuals who believe they have been discriminated against may file charges with IER and may be entitled to receive back pay and reinstatement, among other remedies.
Q. What type of employer conduct does the INA's anti-discrimination provision prohibit?
1. Employers with four or more workers cannot discriminate because of citizenship status with respect to hiring, firing, and recruitment or referral for a fee, subject to certain exceptions. Citizenship status includes a person’s immigration status. U.S. citizens, U.S. nationals, recent lawful permanent residents, asylees, and refugees are protected from citizenship status discrimination. Lawful permanent residents who do not apply for naturalization within six months of eligibility by virtue of their period of residency and certain other non-U.S. citizen categories are not protected from citizenship status discrimination. Learn more about who is protected from citizenship status discrimination by contacting IER and at 8 U.S.C. § 1324b(a)(3). An employer may restrict hiring to U.S. citizens only when a law, regulation, executive order, or government contract requires the employer to do so. Learn more about this exception by contacting IER and at 8 U.S.C. § 1324b(a)(2)(C).
2. Employers with four to 14 workers cannot discriminate because of national origin with respect to hiring, firing, and recruitment or referral for a fee. This type of discrimination includes treating individuals differently because of their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding "foreign." All work-authorized individuals are protected from national origin discrimination by small employers under 8 U.S.C. § 1324b(a)(1)(A). The Equal Employment Opportunity Commission has jurisdiction over national origin discrimination claims against employers with 15 or more workers.
3. Employers cannot engage in unfair documentary practices related to verifying the employment eligibility of employees during the I-9 and E-Verify processes. Specifically, employers are not allowed to, on the basis of citizenship, immigration status, or national origin, request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others. Learn more about unfair documentary practices by contacting IER and at 8 U.S.C. § 1324b(a)(6).
4. Employers cannot engage in intimidation or retaliation. Employers are not allowed to intimidate, threaten, coerce, or retaliate against individuals for filing charges with IER, cooperating with an IER investigation, contesting an action that may constitute unfair documentary practices or discrimination based upon citizenship status or national origin, or otherwise asserting rights under the INA's anti-discrimination provision. Learn more about unlawful intimidation and retaliation by contacting IER and at 8 U.S.C. § 1324b(a)(5).
Q. How do I file a charge with IER?
IER’s charge form is available in several languages. Charges should be filed within 180 days of the alleged discrimination or retaliation. More information on filing a charge is available here.
Q. What happens after a charge is filed?
A. After IER receives what it deems to be a charge, IER will begin its investigation. If IER has not filed a complaint with an Administrative Law Judge (ALJ) within 120 days of receiving a charge, it will send a letter notifying the injured party or authorized representative of their right to file an administrative complaint against the respondent, and indicating whether IER is continuing its investigation. IER will also notify the respondent of its decision to continue an investigation. IER may also file a complaint with an ALJ after this 120-day investigatory period. Learn more about the IER investigation process by contacting IER and at 8 U.S.C. § 1324b(d).
Once a case is filed, pre-trial matters are generally handled in accordance with the applicable rules of practice and procedure, and involve discovery, depositions, and pleadings. ALJ decisions are directly appealable to the federal circuit courts of appeals. Settlements or successful adjudications may result in civil penalty assessments, back pay awards, hiring orders and the imposition of injunctive relief to end discriminatory practices.
Q. Can I report a violation of the anti-discrimination provision without filing a charge?
A. Yes. IER has authority to initiate independent investigations based on information developed during individual charge investigations, or information provided by other government agencies and the general public. Independent investigations often involve discriminatory policies, practices, or processes that potentially affect many employees or applicants. Learn more about IER’s independent investigation authority at 8 U.S.C. § 1324b(d)(1). To report a potential violation of the anti-discrimination provision without filing a charge, you may call IER's worker hotline or email us.
Q. How can I contact IER for assistance?
Q. How does IER's hotline work?
A. IER has multilingual staff, including attorneys, ready to assist workers, employers and the public who contact IER through its worker or employer hotline. IER's hotlines provide workers and employers with an opportunity to receive information about the anti-discrimination provision of the INA and to work directly with IER's staff to resolve potential immigration-related employment disputes informally and quickly without contested litigation. Workers and employers are encouraged to call the respective hotlines above to seek assistance with immigration-related employment issues. Please note that IER cannot provide legal advice or individual legal representation. Language services are available and free of charge.
Q. Does IER offer webinars?
A. Yes. IER regularly hosts webinars to educate employers, workers or other members of the public about the protections and obligations under the anti-discrimination provision. Regularly occurring webinars include webinars targeted to: (1) employers, (2) workers and their advocates, (3) Spanish-speaking audiences, and (4) individuals wishing to better understand workers' rights in the I-9 and E-Verify context presented by IER jointly with U.S. Citizenship and Immigration Services.
Visit http://www.justice.gov/crt/about/osc/webinars.php to register for one of our free webinars. If you are an organization seeking to educate your staff or your community about the anti-discrimination provision, you may also inquire about scheduling a customized webinar to suit your needs by emailing: IER@usdoj.gov.
Q. Can an IER staff member speak at my upcoming live presentation?
A. Maybe. IER staff may be available to participate in seminars, conferences, and workshops to educate employers, workers or other members of the public about protections and obligations under the anti-discrimination provision. Please submit all requests by email to IER@usdoj.gov or call (202) 616-5594 and ask to speak with IER's Outreach Coordinator.
Q. Who is the IER point of contact for inquiries from the media?
A. The Department of Justice's Office of Public Affairs is the principal point of contact for the Department of Justice with the news media. The Office is responsible for ensuring that the public is informed about the Department's activities and about the priorities and policies of the Attorney General and the President with regard to law enforcement and legal affairs. The telephone number for the Office of Public Affairs is (202) 514-2007.
Q. Which documents may I show my employer to establish my identity and employment eligibility?
A. The Department of Homeland Security has designated several combinations of acceptable documents from which workers can choose to prove their identity and employment eligibility. The Form I-9 contains Lists of Acceptable Documents that fall into three categories (see next question for additional information about acceptable documents). A worker is allowed to produce either List A documentation (establishing both identity and employment eligibility), or a combination of documentation from List B (establishing identity) and List C (establishing employment eligibility). Employers are not allowed to specify which documents they will accept from a worker and should not prevent an individual from working because of a document's future expiration date. For further information about acceptable documents, visit I-9 Central. For concerns about possible discriminatory practices relating to employment eligibility verification, contact IER. You can also learn more about unfair documentary practices at 8 U.S.C. § 1324b(a)(6) or at 28 C.F.R. 44.101(e)—(g),(j); 44.200(a)(3).
Q. If I don't have a document from the Lists of Acceptable Documents, can I show my employer something else?
A. Maybe. Under the receipt rule (which is discussed here and found at 8 C.F.R. 274a.2(b)(1)(vi)), a worker may present a receipt in lieu of a listed document to complete section 2 of the Form I-9 as long as the receipt is an acceptable receipt for I-9 purposes. The receipt is valid for a temporary period. There are three different documents that qualify as acceptable receipts for I-9 purposes.
First, a worker may present a receipt for the application for a replacement document when the document has been lost, stolen, or damaged. The receipt is valid for 90 days from the first day of work, after which the worker must present the replacement document to complete the Form I-9.
Second, a worker may present a Form I-94 containing a temporary I-551 stamp and a photograph of the individual, which is considered a receipt for Form I-551. The worker must present the Form I-551 by the expiration date of the temporary I-551 stamp, or within one year from the date of issuance of the Form I-94 if the I-551 stamp does not contain an expiration date.
Third, a worker may present a Form I-94 containing an unexpired refugee admission stamp. A refugee may have an electronic or paper Form I-94. If a refugee presents the departure portion of a Form I-94A containing an unexpired refugee admission stamp or a computer-generated printout of Form I-94 with an admission class of "RE", the employer must accept it. This is considered a receipt for a List A document. The worker must present either an Employment Authorization Document (EAD) or a combination of a List B identity document and an unrestricted Social Security card within 90 days after the first day of work, or in the case of reverification, the date employment authorization expires.
If your employer does not accept a valid receipt for I-9 purposes, contact IER for assistance.
Q. If a worker records a USCIS or Alien Number on the Form I-9, does an employer need to see, or can it ask for, a document with that number?
A. No. If a worker records a USCIS or Alien Number, or an Admission Number, in Section 1 of the Form I-9, an employer is not allowed to ask or see a specific document with that number or otherwise specify which documentation a worker may present, based on the worker's citizenship status. Asking an employee for proof of citizenship or immigration status in the process of verifying a worker's employment authorization could violate the law that IER enforces at 8 U.S.C. § 1324b(a)(6). During both initial verification and reverification, a worker may choose which documentation to present from the I-9 Form List of Acceptable Documents.
Q. My new employer is requiring me to provide an expiration date for my status as a refugee in Section 1 of the Form I-9. Do I have to provide an expiration date in Section 1?
A. No. The Form I-9 instructions direct aliens authorized to work whose employment authorization does not expire, such as refugees, asylees, and certain citizens of the Federated States of Micronesia, the Republic of the Marshall Islands and Palau, to enter "N/A" on the line calling for an expiration date for the worker’s employment authorization. In addition, if a refugee or asylee chooses to show a driver's license and unrestricted Social Security card for Section 2, these documents are not subject to reverification under Form I-9 rules. Contact IER if you are an asylee or refugee and your employer is requiring that you provide an expiration date in Section 1.
Q. May an employer ask an employee to present a Social Security card for payroll (and not I-9) purposes?
A. Yes. Although an employer cannot ask a worker to present a particular document for employment eligibility verification, an employer may request a Social Security card for payroll purposes. However, IER recommends certain practices to avoid confusion about whether the request is for employment eligibility verification purposes: (1) separate the Form I-9 process from other processes involving document requests; and (2) communicate the basis for each document request. For example, explain whether the document request is for payroll or another purpose. Workers who believe an employer is requesting a specific document for employment eligibility verification purposes may allege discrimination in violation of the anti-discrimination provision.
Q. Does an employer need to see a worker's Social Security card to make sure that the Social Security number completed in Section 1 is correct?
A. No. Recording a Social Security number (SSN) in Section 1 of the Form I-9 is optional unless the employer uses E-Verify. If an employer uses E-Verify, E-Verify rules require the worker to fill in the SSN field. An employer still should not ask to review the card to verify it for Section 1 purposes and requesting more or different or specific documentation than required to complete the Form I-9 based on a worker’s citizenship status or national origin may violate the anti-discrimination provision of the INA at 8 U.S.C. § 1324b(a)(6). Note that if a worker is still waiting for an SSN when completing the Form I-9 and the employer uses E-Verify, E-Verify instructions direct the employer to wait to create the E-Verify case until the worker is issued an SSN. As long as the worker has otherwise completed the Form I-9, the worker continues working while awaiting the SSN. For further guidance, contact IER.
Q. My employer asked me to verify my employment eligibility by showing a document issued by the Department of Homeland Security because I am not a U.S. citizen. Is my employer allowed to do this?
A. No. For employment eligibility verification, an employer must allow its workers to choose which documents to show from the Form I-9 Lists of Acceptable Documents and requesting a specific document or more documents based on a worker’s citizenship status may violate the law at 8 U.S.C. § 1324b(a)(6). If the documentation reasonably appears to be genuine and to relate to the worker, another part of the INA (at 8 U.S.C. § 1324a(b)(1)(A)) and Form I-9 instructions direct the employer to accept it. If your employer has demanded a specific document from you for I-9 purposes, contact IER.
Q. A job applicant presented an Employment Authorization Document that expires next month. As an employer, I don't want to train the worker without an assurance that the worker will still be employment-authorized in the future. May an employer reject the applicant for employment due to the uncertainty of continued employment authorization?
A. No. Workers with temporary or continuous employment authorization may present documents with future expiration dates. Even if a worker has temporary work authorization, the worker may receive subsequent employment authorization. Therefore, a future expiration date does not necessarily mean that a worker will not be able to work beyond the date on the document presented. The rules for reverifying employment authorization when a worker has shown a temporary employment authorization document are discussed in the Handbook for Employers and at 8 C.F.R. 274a.2(b)(1)(vii). The Handbook for Employers also explains that an employer cannot refuse to accept a document because it has a future expiration date. In addition, consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may constitute an unfair immigration-related employment practice in violation of the anti-discrimination provision of the INA at 8 U.S.C. § 1324b(a)(6).
Q. A worker has presented an employer with a document that looks fake. Can an employer refuse to accept it without violating the anti-discrimination provision?
A. Yes. Under the INA’s employer sanctions provision, an employer cannot accept a document that does not reasonably appear to be genuine or to relate to the person. However, an employer is not allowed to apply different levels of scrutiny to documents based on a worker's citizenship, immigration status, or national origin, and rejecting a valid document based on a worker’s citizenship status or national origin may violate the law at 8 U.S.C. § 1324b(a)(6). An employer may ask the worker for different documentation if the request is based on the fact that the first document presented does not reasonably appear to be genuine. If the employer rejects a document and does not provide the worker an opportunity to produce a different valid document, the worker may allege unfair documentary practices under 8 U.S.C. § 1324b(a)(6). In addition, contacting IER for assistance before rejecting a document solely because the employer is unfamiliar with the type of document being presented can help an employer avoid a potential claim of unfair documentary practices. For further assistance, contact IER.
Q. A worker's DHS-issued employment authorization document expired and the worker wants to show a Social Security card for reverification. Does the employer need to see a current DHS document?
A. No. For reverification, the Form I-9 rules require a worker to present an unexpired List A or List C document of the worker's choice. Therefore, if a worker presents an unrestricted Social Security card upon reverification, the worker does not need to present a current DHS document even if he or she presented a DHS document for initial employment eligibility verification. However, if a worker presents a restricted Social Security card (stating "not valid for employment," "valid for work only with INS authorization," or "valid for work only with DHS authorization"), the employer is not allowed to accept the restricted Social Security card since it is not an acceptable I-9 document. In that case, the employer may ask the worker to present another unexpired List A or List C document of the worker's choice. Note that List B documents are not required for reverification. For questions about the acceptability of documents for reverification, contact IER.
Q. Does an employer need to reverify the work authorization of lawful permanent residents who produce a "green card" with a future expiration date?
A. No. Lawful permanent residents who produce an unexpired Permanent Resident Card (Form I-551 or "green card") are not subject to reverification, even if the Form I-551 lists a future expiration date. Reverifying Permanent Resident Cards may constitute a violation of the anti-discrimination provision of the INA at 8 U.S.C. § 1324b(a)(6). For questions about how to conduct reverification in a nondiscriminatory manner, contact IER.
Q. If I am a lawful permanent resident, do I need to show my employer a new unexpired Permanent Resident Card when the card expires?
A. No. Form I-9 rules instruct employers not to reverify a lawful permanent resident who initially presented an unexpired Permanent Resident Card, even when the card expires. Employers that request documents when not required, based on a worker’s citizenship status, may violate the INA’s anti-discrimination provision at 8 U.S.C. § 1324b(a)(6). If your employer reverifies your employment eligibility after you presented an unexpired Permanent Resident Card, contact IER.
Q. I have Temporary Protected Status ("TPS"), and the Department of Homeland Security extended my Employment Authorization Document ("EAD") for six months. My employer insists that I show an unexpired card to continue working. Do I need to?
A. No. If you have TPS and the government extends your TPS, you must re-register for TPS and apply for a new EAD to keep working. Your EAD may be extended past its original expiration date in a couple of ways. Sometimes, the government extends TPS EADs through the Federal Register, and the Federal Register notice will tell you whether your EAD automatically has a new expiration date. Go to www.uscis.gov/tps for information on TPS for your country and the Federal Register notice. If the government does not automatically extend your EAD through the Federal Register notice but you have applied to renew your TPS EAD, you may be able to keep working after the expiration date on your EAD. For 180 days after your EAD expiration date, you can show your TPS EAD with the I-797C receipt notice showing that the government received your EAD renewal application. If the Federal Register notice automatically extends your EAD, you do not have to show an I-797C with your EAD to keep working. For more information on automatic extensions of EADs, read this USCIS Fact Sheet, the Handbook for Employers on Completing the Form I-9, and 8 C.F.R. 274a.2(b)(1)(vii). You can also call IER for more information.
Q. When my employer created an E-Verify case with my information, I received a tentative nonconfirmation (TNC) and notified my employer that I have decided to take action to resolve the TNC. I have work authorization but my employer told me that I can start working only after I resolve my TNC. Is my employer allowed to do this?
A. No. E-Verify rules prohibit an employer from firing a worker, suspending a worker, or limiting a worker’s hours because the worker chooses to take action to resolve the TNC, as long as the status in E-Verify remains a TNC. Employers that allow only some workers to work while resolving a TNC depending upon the worker's citizenship status or national origin may be violating the anti-discrimination provision of the INA. If your employer has not allowed you to work because you are resolving your TNC, contact IER.
Q. Is an employer that participates in E-Verify allowed to terminate or suspend an employee who decides to contest a tentative nonconfirmation (TNC), based on the TNC?
A. No. A TNC does not necessarily mean the worker is not authorized to work. The E-Verify law and rules do not permit an employer to take adverse action against the worker because the worker is resolving the TNC, including terminating or suspending the worker. E-Verify rules require the employer to await a final resolution from E-Verify, even if such final resolution takes longer than the typical period.
Terminating an individual based on the assumption that he or she is not authorized to work based only on a TNC may violate the anti-discrimination provision of the INA under 8 U.S.C. § 1324b(a)(1) or (a)(6). For more information, including employer best practices on avoiding discrimination in the use of E-Verify, see IER's E-Verify guidance for employers here.
Q. If a worker's name and Social Security number don't match the Social Security Administration's (SSA) records, should the employer automatically conclude that the worker is not authorized to work?
6. A change in citizenship status that has not been reported to SSA.
As the Social Security Administration states in its Employer Correction Request letter, an employer should not use the mismatch by itself as the reason for taking any adverse employment action against any worker. Doing so may violate the anti-discrimination provision of the INA at 8 U.S.C. § 1324b. For more information, including steps employers can take upon receipt of a Social Security name/number mismatch, see IER's guidance for employers on Social Security name/number no-matches here.
Q. I was rejected for a job because I am not a U.S. citizen. Is this citizenship status discrimination?
A. Under 8 U.S.C. §§ 1324b(a)(1)(B) and (a)(2)(C), employers are not allowed to limit job applicants or hires to U.S. citizens unless they are required to do so by federal, state, or local laws or federal contracts that require specific positions to be filled only by U.S. citizens. If a job applicant is discouraged or rejected from employment based on citizenship status, the employer may be committing citizenship status discrimination in violation of the anti-discrimination provision of the INA. You can get more information on citizenship status discrimination at 8 U.S.C. § 1324b(a)(1)(B) and by contacting IER. If you believe that your application may have been improperly rejected because you are not a U.S. citizen, contact IER.
Q. I was rejected for a job because the employer only likes to hire workers on temporary visas. Is the employer allowed to do this?
A. No. Failing to consider or hire qualified workers protected from citizenship status discrimination (U.S. citizens, U.S. nationals, asylees, refugees, and recent lawful permanent residents) workers based on their citizenship status violates a part of the INA found at 8 U.S.C. § 1324b(a)(1)(B). Employers may violate this law even if the employer follows the rules for the temporary employment-based visa programs, if the employer makes its hiring decision based on a worker’s citizenship status. Contact IER if you believe an employer discriminated against you based on your citizenship status.
Q. May I ask applicants for citizenship or immigration status information?
A. Generally, an employer may ask job applicants if they have the legal right to work in the United States and if they will need sponsorship for an employment visa. Asking for specific citizenship status information for purposes unrelated to any recruitment, hiring, or firing decision is unlikely to violate the law IER enforces. However, unsuccessful applicants who are subjected to these types of questions may believe that the employer based its decision on the applicant’s citizenship status (which includes immigration status). Therefore, it is a best practice to avoid asking applicants for this information.
Q. If my company engages in activity regulated by the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR), does the ITAR or the EAR require me to hire only U.S. citizens?
A. No. Nothing under the ITAR or the EAR requires or allows an employer to limit jobs to U.S. citizens. However, the ITAR or the EAR may require a company to obtain authorization if certain employees require access to technology that is regulated under the ITAR or the EAR, and such requirements may affect these employees’ scope of employment. In particular, a company may need to obtain authorization to release covered technology to employees who are not U.S. citizens, U.S. nationals, lawful permanent residents, asylees, or refugees. Contact the Department of State’s Directorate of Defense Trade Controls for more information on requirements under the ITAR and the Department of Commerce’s Bureau of Industry and Security for more information on deemed export requirements under the EAR.
Q. I applied for a job with an employer that only has four employees, and it refused to hire me due to my national origin. Is that employment discrimination?
A. Yes. The anti-discrimination provision of the INA prohibits employers with four to 14 employees from discriminating in hiring based on national origin, and Title VII of the Civil Rights Act (enforced by the Equal Employment Opportunity Commission (EEOC)) prohibits employers with 15 or more employees from discriminating in hiring based on national origin. If an employer has rejected your employment application based on your national origin, contact IER to determine whether IER or the EEOC has jurisdiction to assist you. You can learn more about the INA’s prohibition against national origin discrimination at 8 U.S.C. § 1324b(a)(1)(A), and Title VII’s prohibition against national origin discrimination at 42 U.S.C. § 2000e-2.
Q. I applied for a job with an employer that only has four employees and was informed that to be hired I would need to speak English without a foreign accent. Is this legal?
A. A small employer (four to 14 employees) that rejects an applicant because of a foreign accent may violate the anti-discrimination provision of the INA at 8 U.S.C. § 1324b(a)(1)(A). Such conduct by a larger employer (15 or more employees) may violate Title VII of the 1964 Civil Rights Act, which is enforced by the Equal Employment Opportunity Commission. More information about national origin discrimination is available here.


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The Committee on the Elimination of Discrimination against Women oversees implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) through its consideration of State reports, individual complaints, inter-State complaints, and inquiry requests, and its preparation of general recommendations, statements, and general discussions. As of June 2014, 188 States are party to the CEDAW.
The Committee on the Elimination of Discrimination against Women is composed of 23 independent experts on women’s rights who are elected for a term of 4 years. See CEDAW, art. 17. Elections for 9 out of the 18 members occur every two years in order to ensure the Committee maintains a balance between changing the Committee’s composition and continuity. See id. The Committee also has five officers: a Chairperson, three Vice-Chairpersons, and a Rapporteur, who all serve for a term of two years. See CEDAW, art. 19. Further information about the election process can be found on the Office of the High Commissioner for Human Rights’ website on Elections of Treaty Body Members.
The Committee generally holds one annual session lasting for no more than two weeks in Geneva, Switzerland. The schedule of past and upcoming Committee sessions is available online, and the OHCHR maintains a Master Calendar of all UN Member States’ upcoming treaty body reviews.
State parties are required to submit an initial report within one year after acceding to CEDAW, and should be no more than 100 pages long. State parties to CEDAW are then required to submit regular periodic reports on how rights are being implemented every 4 years, or whenever the Committee on the Elimination of Discrimination against Women requests. See CEDAW, art. 18. The regular periodic reports should be no more than 70 pages long, and focus on the period between the previous report and current report. See Committee on the Elimination of Discrimination against Women, Overview of the Current Working Methods of the Committee, CEDAW/C/2004/I/4/Add.1, 7 November 2003.
Regular periodic reports require each State party to submit (1) a common core document, which lists general information about the reporting State, a framework for protecting human rights, and information on non-discrimination and equality, and (2) a treaty-specific document, which accounts for specific information relating to the implementation of CEDAW and any national law or policies taken to implement CEDAW. For more specific guidelines regarding the form and content of reports, the Secretary General has published a Compilation of Guidelines on the Form and Content of Reports to be Submitted by State Parties to the International Human Rights Treaties.
Following the receipt of the periodic reports, the Committee will host a pre-session working group of five members who will create a short list of issues and questions that the full Committee will consider at the following session. State parties will have an opportunity to respond to the list of issues and questions prior to engaging in a constructive dialogue at the Committee’s session. Afterwards, the Committee will adopt concluding observations, which generally includes sections on positive aspects the State has complied with CEDAW, a potential list of factors and difficulties in implementation of CEDAW, and principal areas of concern and recommendations. The Committee also keeps a current list of concluding observations.
In June 2008, the Committee introduced a follow-up procedure requesting State parties to provide follow-up information on the implementation of two recommendations in its concluding observations within two years. See Other Activities of the Human Rights Treaty Bodies and Participation of Stakeholders in the Human Rights Treaty Body Process, UN Doc. HRI/MC/2013/3, 22 April 2013, para. 5.
The Committee on Elimination of Discrimination against Women may consider individual complaints that allege a violation of an individual’s rights under CEDAW if the State is party to the Optional Protocol to CEDAW. See Optional Protocol to the Covenant on the Elimination of All Forms of Discrimination against Women (adopted 6 October 1999; entered into force 22 December 2000). Articles 2 through 4 of the Optional Protocol list the Committee’s criteria for considering an individual complaint. As of June 2014, 104 States are party to the Optional Protocol.
or to the following email addresses: petitions@ohchr.org, TB-petitions@ohchr.org, cedaw@ohchr.org, and registry@ohchr.org.
Following the Committee’s Rules of Procedure, Rule 63 allows the Committee to provide for interim measures in the period between receipt of the individual complaint and a decision on the merits. Interim measures will be provided if the Committee considers it necessary to avoid irreparable damage to the victim or victims of the alleged violation.
The Committee on the Elimination of Discrimination against Women also has a table summary of its recent jurisprudence, which includes the articles invoked, subject matter, any procedural issues, and the outcome. More information for the procedure on individual complaints can be found in the Office of the UN High Commissioner for Human Rights 23 Frequently Asked Questions about Treaty Body Complaints Procedure and Procedure for Complaints by Individuals under the Human Rights Treaties webpage.
Article 29 of CEDAW provides a mechanism for States to resolve inter-State disputes concerning the interpretation of application of the Convention. See CEDAW, art. 29. This procedure allows for disputes to be resolved in the first instance by negotiation, and should that fail, by arbitration. If the parties then fail to agree to the arbitration within a period of 6 months, then one of the States may refer the dispute to the International Court of Justice unless a State opted out of the procedure by making a declaration at the time of ratification or accession to CEDAW.
The Committee on the Elimination of Discrimination against Women does not have a mechanism in place for urgent interventions.
The Committee on the Elimination of Discrimination against Women can also consider inquiries on grave or systematic violations of any of the rights set forth in CEDAW. See Optional Protocol to CEDAW, art. 8. State parties may opt out of the inquiry procedure at the time of signature, ratification or accession of CEDAW by declaring that the State does not recognize the competence of the Committee to undertake inquiries. See Optional Protocol to CEDAW, art. 10.
The inquiry procedure is confidential and the State party’s cooperation is sought at all stages. Generally, the inquiry procedure proceeds in five steps.
The Committee receives information that the rights contained in CEDAW are being systematically violated by the State party.
The Committee invites the State party to submit relevant observations.
Based on the relevant submissions and observations, the Committee may then designate one or more of its members to conduct an inquiry and then submit an urgent report to the Committee. With the State party’s consent, the initial inquiry may involve a visit to the State’s territory.
The Committee examines the report and then transmits any findings, along with comments and recommendations to the State party.
The State party is then requested to submit its own observations and any measures it took regarding the Committee’s findings, comments, and recommendations within a specified time period.
The Committee on the Elimination of Discrimination against Women also maintains reports and documentation relating to inquiry procedures on its webpage.
The Committee on the Elimination of Discrimination against Women also prepares general recommendations that discuss any issue relating to women that it believes State parties should devote their focus towards. Each general recommendation does not necessarily target a specific article of CEDAW. The Committee maintains a current list of general recommendations on its website.
The Committee on the Elimination of Discrimination against Women adopts statements to clarify its position with respect to international developments and any issues that bear upon CEDAW’s implementation. See Committee on the Elimination of Discrimination against Women, Ways and Means of Expediting the Work of the Committee on the Elimination of Discrimination against Women, CEDAW/C/2007/I/4/Add.1, 25 October 2006.
The Committee on the Elimination of Discrimination against Women also hosts General Discussion days in order to commence the process of adopting a general recommendation. Past general discussions have included rural women, access to justice, women in conflict and post-conflict situations, and harmful practices.
NGOs and other civil society groups do not require ECOSOC consultative status to engage with the Committee on the Elimination of Discrimination against Women. Furthermore, any group may submit information to the Committee or prepare an individual complaint on behalf of a victim. Certain requirements, including prior registration, regulate civil society organizations’ participation in-person in the Committee’s sessions, however. See the CED’s Civil Society webpage for additional information.
The Committee on the Elimination of Discrimination against Women invites NGOs and other civil society stakeholders to provide submissions about the States whose reports are before the Committee. All submissions should be sent by email (in pdf format) and by post (30 hard copies) at least two weeks prior to the beginning of each session. NGOs are also encouraged to provide reports or other State-specific information to the pre-session working group. Those submissions can either be sent by email (in pdf format), given directly by NGO representations to the pre-session working group (10 hard copies), or at least two weeks prior to the beginning of the pre-session working group (10 hard copies). For more information regarding NGO reports, please consult the Committee on the Elimination of Discrimination against Women’s Information note provided by OHCHR for NGO Participation.
NGOs are also invited to make oral interventions in respect of the States being considered at the Committee’s Sessions. The pre-session working group also provides an opportunity for NGOs to provide oral information. NGO representatives that do wish to address the Committee or pre-session working group must provide: (1) the NGO’s name, (2) the names of the NGO’s representatives, and (3) proposed dates of attendance. All information must be submitted to cedaw@ohchr.org at least two weeks prior to the beginning of the session or the pre-session working group.
All NGOs and civil society stakeholders are also welcome to attend Committee’s sessions as observers, in which case they will not be given the opportunity to address the Committee.
If an NGO or other civil society stakeholder wishes to attend a Committee on the Elimination of Discrimination against Women Session, the organization is required to be duly registered. Participants will have to submit a completed Conference Registration Form to the attention of both Ms. Adele Quist at aquist@ohchr.org and the Secretariat of the Committee on the Elimination of Discrimination against Women at cedaw@ohchr.org. To participate in a CEDAW session, the NGO must also register electronically through the United Nations Department of Economic and Social Affairs’ CSO Net website.
More information can be found on the Committee on the Elimination of Discrimination against Women’s webpage for Information Note on Accreditation to attend sessions of Treaty Bodies.
The Committee’s outputs can be found on its website and are linked to in the relevant sections above. The UN Treaty Body Database also collects these documents, which may be searched by several criteria, but not by keyword or subject matter. For additional research tools, view the Research Aids section of this Online Resource Hub.
Webcasts of the Committee’s sessions are periodically broadcast on either UN Treaty Body Webcast or UN Web TV.
Another useful resource is the International Service for Human Rights’ Simple Guide to UN Treaty Bodies (2010), which examines each treaty bodies’ reports, individual communications, State-to-State complaints, inquiry procedures, urgent interventions, general comments, and how NGOs can engage with treaty bodies.

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art. 17
art. 19
art. 18
art. 29
art. 8
art. 10


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SARA, INCORPORATED and Dr. Harry L. Shaheen, Defendants-Appellees.
Beard & Shea, John R. Shea, Baton Rouge, La., for plaintiffs-appellants.
Winfield E. Little, Jr., Lake Charles, La., for defendants-appellees.
Appeal from the United States Court for the Middle District of Louisiana.
The issue presented by this appeal is whether inmates at a state penitentiary, who perform work for a profit-making private entity conducting operations on prison grounds, are as to that private company within the coverage of the Fair Labor Standards Act, 29 U.S.C. Secs. 201 et seq. ("the Act") and thus entitled to be paid minimum wages by it for their services performed for it. The plaintiffs appeal from dismissal of their suit upon summary judgment. 559 F.Supp. 42 (M.D.La.1983). We affirm.
The factual circumstances, briefly, are that the state Department of Corrections entered into a contract with the defendant Sara, Inc.,1 by which Sara established a blood-plasma program on penitentiary grounds. Under the terms of the agreement, the inmates are compensated at the rate of three dollars per day, which Sara pays to the state agency, which in turn deposits the amounts earned to the individual inmate's prison account. Under the contract, although the state agency reserved the right to veto the assignment of inmates to work in the plasma laboratory, the inmates were engaged by Sara and worked under its direct supervision, with the agency responsible only for security at the facility. The inmates so engaged worked at sanitation and clean-up, helped to prepare donors and extract blood, and performed clerical duties.
The Act defines "employee" as "any individual employed by an employer." 29 U.S.C. Sec. 203(e)(1). The term "employ" is defined as including "to suffer or permit to work." 29 U.S.C. Sec. 203(g). On the surface, at least, Sara's relationship with the inmates appears to have all the characteristics of an employment relationship, even though the state agency had the ultimate authority over the inmates. See, e.g., Castillo v. Givens, 704 F.2d 181, 188-92 (5th Cir.1983).
The district court concluded that, nevertheless, the inmates were not covered by the Act. The essential reasons for its conclusion were (a) that there was no employer-employee relationship, because the inmates' labor belonged to the penitentiary, which was the sole party to the contract with Sara, and (b) that the Congressional concern in enacting the Act was with the standard of living and general well-being of the worker in American industry, so that the extension to the prison inmate was not legislatively contemplated.
This conclusion is in accord with all the sparse prior decisions on the issue: Huntley v. Gunn Furniture Co., 79 F.Supp. 110 (W.D.Mich., 1948); Hudgins v. Hart, 323 F.Supp. 898 (E.D.La.,1971); Sims v. Parke Davis & Co., 334 F.Supp. 774 (E.D.Mich.,1971), aff'd. 453 F.2d 1259 (6 Cir.1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972); Worsley v. Lash, 421 F.Supp. 556 (N.D.Ind., 1976). See also Lavigne v. Sara, Inc., 424 So.2d 273 (La.App. 1st Cir.1982). But see Comment, Minimum Wage For Prisoners, 7 U.Mich.J.L.Ref. 193, 199-203 (1973).
We are unable to hold that the district court erred. We therefore AFFIRM its dismissal of the plaintiffs' claim for the wage-protection of the Act.

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by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, “the 1965 Act”) as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to pass directions for safety of women pilgrims. That apart, a prayer has also been made for laying guidelines in matters of general inequality related to religious practices in places of worship.
“40. The deity in Sabarimala temple is in the form of a Yogi or a Bramchari according to the Thanthri of the temple. He stated that there are Sasta temples at Achankovil, Aryankavu and Kulathupuzha, but the deities there are in different forms. Puthumana Narayanan Namboodiri, a Thanthrimukhya recognised by the Travancore Devaswom Board, while examined as C.W. 1 stated that God in Sabarimala is in the form of a Naisthik Bramchari. That, according to him, is the reason why young women are not permitted to offer prayers in the temple.
16. Mr. R.P. Gupta, learned counsel for the petitioners submits that there is no religious custom or usage in the Hindu religion specially in Pampa river region to disallow women during menstrual period. According to him, banning entry of women would be against the basic tenets of Hindu religion. It is his assertion in the written note that Sabarimala Temple is not a separate religious denomination because (i) the religious practices performed in Sabarimala Temple at the time of ‘Puja’ and other religious ceremonies are not distinct and are akin to any other practice performed in any Hindu Temple; (ii) that it does not have its separate administration but is regulated by statutory Board constituted under Travancore-Cochin Hindu Religious Institutions Act, 1950; (iii) that it is getting State funding out of Consolidated Fund under Article 290-A of the Constitution; (iv) that there is no particular follower of this temple except general Hindu followers visiting any temple; and (v) that mere attraction of some people for some temple does not make it a separate and distinct religious denomination. Learned counsel referring to the decision in The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakhshmindra Thirtha Swamiar of Sri Shirur Mutt2 would contend that what is protected under Article 26(b) is only the ‘essential part’ of religion. Relying on Durgah Committee, Ajmer v. Syed Hussain Ali3, it is urged by him that clauses (c) and (d) of Article 26 do not create any new right in favour of religious denomination but only safeguards their rights. Learned counsel contends that in the matters of managing religious affairs, all practices are not always sacrosanct, for there may be many ill practices like superstitions which in due course of time may be merely accretions to the basic theme of that religious denomination. It is put forth by him that entry to the temple is not essential to religion and there is difference between “regulation of entry” and “complete prohibition of entry”. Placing reliance on Sri Venkatramana Devaru & Ors. v. State of 2 1954 SCR 1005 3 (1962) 1 SCR 383 Mysore & Ors.4, learned counsel submits that the religious denomination cannot completely exclude the members of any community and may only restrict their entry in certain rituals. He further contends that the relevant Rule cannot be interpreted to mean that it bars entry of women as such an interpretation would invite violation of principles underlying gender equality. Mr. Gupta contends that the expression ‘at any stage of time’ occurring in Rule 3(b) has to be read narrowly which can be found in customs or usage like during late night if by any custom or usage women are not allowed to enter temple, the said custom or usage shall continue but it does not permit complete prohibition of entry of women.
18. Mr. K. Ramamoorthy, learned amicus curiae in his written note of submission has put forth that the judgment of the High Court of Kerala is founded on the religious practice and after detailed enquiry the view having taken by the High Court that the restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution, the same should not set at naught in this petition for public interest litigation. His further argument is that the devotees of Lord Ayyappa could also be brought within the ambit of religious denomination who have been following the religious practice which has been essential part of religion. His stand is that this Court had no occasion to consider the important question, that is, what is religious practice on the basis of religious belief which would apply not only to Ayyappa temple but would also apply to all the prominent temples all over India and, therefore, the matter has to be decided by a Constitution Bench. According to the learned senior counsel, none of the cases cited at the Bar would govern the issue raised here, that is, protection under Articles 25 and 26 of the Constitution is not limited to the matters of doctrine or belief but also extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals and observations, ceremonies and modes of worship which are integral parts of religion. The concept “essential part of religious practice” has to be decided by the Court with reference to the practices which are regarded by the large sections of the community for several centuries. It is propounded by him that a religious practice based on religious faith adhered to and followed by millions of Hindus for over a millennium in consonance with natural rights of men and women is not violative of Fundamental Rights without appreciating the scope of these rights.
19. Mr. Raju Ramachandran, learned amicus curiae, in his turn, contends that Sabarimala Sree Dharma Sastha Temple is a public temple, members of the public are admitted and its use as a place of public worship and entry thereto is not to any particular denomination or part thereof. The temple is managed and administered by a statutory body, i.e., the Travancore Devaswom Board. As entry to a public temple is a legal right but not a permissible right and, therefore, the temple authorities have no authority to curtail the said right. In this context, he has drawn inspiration from the authorities namely, Deoki Nandan v. Murlidhar9, Sri Radhakanta Deb v. Commissioner 9 (1956) SCR 756 of Hindu Religious Endowments, Orissa10 and Nar Hari v. Badri Nath Temple Committee11. It is his proponement that the right of a woman to visit and enter the temple as a devotee of the deity, as a believer in Hindu faith is an essential facet of her right and restriction of the present nature creates a dent in that right which is protected under Article 25 of the Constitution. Article 25(1) establishes a non-discriminatory right and it is available to men and women professing the same faith, for it engulfs the concept of intra-faith parity. The distinction between entry into temples and right to conduct the worship of the deity as per ritualistic process of worship by an “Acharya” has been recognized to keep the constitutional norm at its pedestal. In this regard, he has commended few passages from Nar Hari (supra) and Shastri Yagnapurudasji (supra).
23. It is submitted by Mr. Jaideep Gupta, learned senior counsel that Article 25 and 26 of the Constitution guarantee every person and community, the right and freedom to profess practice and propagate religion and manage its own affairs in matters of religion. It is settled that a religion not only lays down a code of ethical rules but may also prescribe rituals and observances, ceremonies and modes of worship. These, when they constitute an integral/essential part of the religion is protected under Article 25 and Article 26 of the Constitution. It is further urged by him that the administration of the temple vests with the Travancore Devaswom Board under the provisions of the Act and there is a statutory duty cast on the Devaswom Board to arrange worship in temples in accordance with the usage. Therefore, in matters of religion, it is the opinion of the priests that is final. It is also the contention that under ceremonial law pertaining to temples, who are entitled to enter into them for worship, where they are entitled to stand and worship and how worship is to be conducted are all matters of religion protected both under Article 25 and Article 26(b).
24. Mr. K. Parasaran and Mr. K.K. Venugopal, learned senior counsel appearing for Devaswom Board submit that the petition under Article 32 of the Constitution is not maintainable as no right affecting public at large is involved in the case. The religious questions posed in this Writ Petition can be determined finally only by the “Thanthri” concerned and not by other Thanthries who have no authority over the Sabarimala Temple; that worshippers visit the temple after observing penance for 41 days and usually ladies between the age of 10 and 50 will not be physically capable of observing “vratham” for 41 days on physiological grounds; that the rule that during these seasons no women aged more than 10 and less than 50 shall enter the temple is scrupulously followed and the Board, being a statutory authority, cannot forget the mandate laid down under Articles 15, 25 and 26 of the Constitution while administering the Temples under their control; that the Board cannot conceive of any religious practice under the Hindu Religion which deprives a worshipper of his right to enter the Temple and worship therein according to his belief; that notifications are issued by the Board during Mandalam, Makaravilakku and Vishu preventing women of the age group between 10 to 50 from entering the Temple taking into account the religious sentiments and practices followed in the temple. Article 25 confers freedom of conscience and freedom to profess, practice and propagate religion subject to public order, morality and health and all other provisions of Part III. But every religious denomination or any section thereof shall have the right to manage their religious affairs subject to public order, morality and health. Every religious denomination is conferred such freedom under Article 26 of the Constitution and they shall have the right – (a) to established and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion, and (c) to administer such property in accordance with law. It is contended that Ayyappa devotees form a denomination by themselves and have every right to regulate and manage its own affairs in matters of religion. Reliance has been placed on Raja Bira Kishore Deb v. State of Orissa23. Learned senior counsel have also drawn immense inspiration from the judgment of the High Court to highlight the stand that it is the right of a religious denomination to administer property and it is fundamental under the Constitution. Passages have been reproduced from Shri Lakhshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In essence, the submission is that the practice which is in vogue in the temple is 23 AIR 1964 SC 150 an essential part of religion which the Constitution protects. Learned senior counsel have commended us to a decision in S.P. Mittal v. Union of India and others24. According to them, whether any practice is an integral part of the religion or not has to be decided on the basis of evidence. Relying upon the authority in Tilkayat Shri Gvindlalji Maharaj v. State of Rajasthan and others25 it is contended that that the question will always have to be decided by the Court and in doing so the Court may have to enquire whether the practice in question is religious in character and, if it is, whether it can be regarded as an integral or essential part of the religion and finding on the question on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. Reference has been made to Ratilal Panachand Gandhi v. State of Bombay and Others26 to state that the said authority has in unmistakable terms held that in regard to affairs in matters of religion the right of management given to a religious body is a guaranteed fundamental right which no legislature can take away. Various paragraphs from the judgment of the Kerala 24 (1983) 1 SCC 51 25 (1964) 1 SCR 561 : AIR 1963 SC 1638 26 AIR 1954 SC 388 : 1954 SCR 155 High Court have been referred to bolster the stand that such restriction imposed by the Davaswom Board is not violative of Articles 15, 25 and 26 of the Constitution. Such restriction is also not violative of the provisions of the 1965 Act since there is no restriction between one section and another section or between one class among the Hindus in the matter of entry to the temple whereas the prohibition is only in respect of women of a particular age group and not women as a class. They have referred to the additional affidavit filed by the Devaswom Board that Ayyappans belong to a different denomination and it is elaborately set forth how the temple has come into existence. That apart, it is seriously canvassed that once a decision has been rendered by the High Court, it would operate as res judicata and that will bind all persons including the petitioners herein. The question as to whether a set of persons constitute a religious denomination is a mixed question of fact and law and should be decided by a competent civil court after examination of documentary and other evidence. In this regard, reliance has been placed on the authority in Dr. Subramanian Swamy v. State of Tamil Nadu and others27. Various other aspects have 27 (2014) 5 SCC 75 also been highlighted but it is not necessary to note the same at present.

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INTRODUCTORY TEXT: The Constitutional Chamber of El Salvador’s Supreme Court considered the Amnesty Law adopted after the non-international armed conflict between the Farabundo Martí National Liberation Front (FMLN) and governmental armed forces, and found it to be unconstitutional. The Court argued that the Amnesty Law - which granted full and unconditional amnesty to everyone who participated in the commission of a political offence connected to or as a consequence of the armed conflict - was in breach of IHL. The Supreme Court reasoned that Art. 4 (2) of Additional Protocol II – which sets out a list of acts that are prohibited “at any time and in any place whatsoever” – implicitly barred any of the listed acts from being covered by such an amnesty. As a consequence, the Supreme Court argued that the term “broadest possible amnesty” in Art. 6 (5) of Additional Protocol II needs to be interpreted so as to take into account the international commitments of El Salvador, including the respect for IHL, as reflected in Art. 144 of its Constitution.
Case prepared by Silvia Scozia, LL.M. student at the Geneva Academy of International Humanitarian Law and Human Rights, under the supervision of Professor Marco Sassòli and Ms. Yvette Issar, research assistant, both at the University of Geneva.
 The purpose of these joined constitutional proceedings […] was to have this court declare the General Amnesty Law for the Consolidation of Peace (hereinafter referred to as the “1993 Amnesty Law”) unconstitutional on account of formal flaws and because of flaws in the content of Articles 1, 2 and 4 (e) thereof,which were allegedly inconsistent with Articles 2, paragraphs 1 and 3, 12, 85, 131 (26th case), 135 and 144, paragraph 2, of the Constitution, read with Articles 1, paragraph 1, and 2 of the American Convention on Human Rights, Article 2, paragraph 2, of the International Covenant on Civil and Political Rights and Article 4 of Additional Protocol II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (hereinafter referred to as “Protocol II”).
“Art. 1. Broad, absolute and unconditional amnesty shall be granted to all persons who in any manner have taken part in the commission of political offences, ordinary offences in connection therewith and ordinary offences committed by a number of no less than 20 persons before 1 January 1992, whether or not sentence has been passed on these persons and whether or not proceedings have been initiated for the same offences, this pardon being granted to all persons who have been the direct or intermediate perpetrators of, or accomplices in, the aforementioned offences. Pardon under this amnesty shall be extended to the persons referred to in Article 6 of the National Reconciliation Law contained in Legislative Decree No. 147 of 23 January 1992, published in Official Journal No. 14, Volume 314, of the same date.
Art. 2. For the purposes of this Law […] offences committed by reason or in consequence of the armed conflict shall likewise be deemed to be political offences, irrespective of political status, membership of a political party or political affiliation or ideology.
e) Amnesty granted under this law shall in all cases extinguish civil liability.
 Amnesty […] is a measure which, just as it may further the achievement of the purposes of the Peace Accords at the end of an internal armed conflict, may also become an obstacle to the attainment of these purposes, since it prevents not only the prosecution of those responsible for ordering or committing crimes against humanity and war crimes constituting serious violations of international humanitarian law (IHL), but also redress for victims, thereby leading to impunity for such offences.
 […]The Salvadoran Constitution, while recognizing amnesty, lays down that it may be granted solely by the Legislative Assembly “for political offences or ordinary offences committed in connection therewith or for ordinary offences committed by no less than 20 persons” […]; this may not be interpreted unconditionally or in a manner that is incompatible with the Constitution – especially the provision recognizing the right to life and personal safety and the right to their preservation and defence (Article 2) and the provision which prohibits the granting of amnesty for violations, infringements or breaches of the Constitution (Article 244). Nor may the principles and provisions of international law or international jurisprudence be contradicted.
 The National Reconciliation Law of 23 January 1992 […] provides that “persons who, according to the report of the Truth Commission, have participated in serious acts of violence since 1 January 1980 [...]” may not be amnestied.
 The aforementioned provision was repealed by the General Amnesty Law for the Consolidation of Peace, approved on 20 March 1993 […].
 The aforementioned provision is not absolute and unconditional, since it must be construed in light of other international provisions embodying obligations to respect and safeguard fundamental rights, which therefore restrict the scope and effects of amnesties declared in post-conflict situations. Hence this provision must be interpreted restrictively and confined to acts of war of the parties to the conflict and not encompass grave and systematic violations of constitutional rules and international law, such as crimes against humanity and war crimes constituting serious violations of IHL.
 Accordingly, even “the broadest possible amnesty” to quote the express terms of Article 6, paragraph 5, of the above-mentioned Protocol II, may never be an absolute, unlimited and unconditional amnesty, since its widest ambit is always limited by what is “possible”, which must be determined in each and every political process aimed at implementing this measure. In order to delimit the potential coverage of an amnesty law, it is essential inter alia that the legislator take into consideration the constitutional and international commitments incumbent on the State of El Salvador when implementing human rights treaties and international humanitarian law with a view to effectively protecting fundamental rights and eradicating impunity.
 In accordance with Article 144 of the Constitution, this Chamber considers that the “fundamental guarantees” of “humane treatment”, and the prohibitions provided for in Article 4 of Protocol II in order to guarantee the protection of the life and other fundamental rights of civilians and other especially protected persons during internal armed conflicts constitute obligations stemming from a peremptory norm of customary international law and international humanitarian law which applied during the armed conflict in El Salvador. It must be noted that Protocol II [...] is part of the law of the Republic and was in force throughout the armed conflict.
 Consequently, failures to comply with, or the widespread and systematic disregard of, these obligations, prohibitions and “fundamental guarantees”, must be deemed to be serious violations of international human rights law and international humanitarian law which, since they are prohibited “at any time and in any place whatsoever”, including during armed conflicts, may never form the subject of an amnesty, since they are not among the possible circumstances provided for in Protocol II.
 Under the terms of the above-mentioned provision of Protocol II, and in order to set limits to an amnesty, conduct amounting to any kind of failure to give effect to the aforementioned guarantees and prohibitions and which has been widespread or systematic must be considered to be a crime against humanity or a war crime constituting a serious violation of IHL, as the case may be, even though it is or was otherwise qualified in domestic law at the time of its occurrence.
 Accordingly, the criminal prosecution of such international crimes cannot in any way be said to reflect adverse retroactivity, since along with the existing treaty obligation to abstain from such conduct, it was also qualified beforehand in the corresponding criminal legislation, so that those responsible for, or the direct or intermediate perpetrators of war crimes and crimes against humanity, were in a position to realise that their conduct was an offence and that they were under an obligation to refrain from it.
 The criminal law classification of offences must therefore correspond to the law in force at the time that they were committed, even though, on account of their characteristics and context, they also come under the international category of war crimes, crimes against humanity or international crimes which are not subject to the statute of limitations.
 […] The grounds for unconstitutionality, namely the alleged incompatibility [...] will be analysed below.
 In accordance with the scope of the fundamental rights on which the applicants rely and which are analysed above, this Chamber considers that this objective and subjective extension of amnesty is contrary to the right to judicial and non-judicial protection (Article 2, paragraph 1, and Article 144, paragraph 2, of the Constitution, read with Articles 1, paragraph 1, and 2 of the American Convention on Human Rights, Article 2, paragraph 2, of the International Covenant on Civil and Political Rights and Article 4 of Additional Protocol II), because it prevents compliance with the State's obligations to prevent, investigate, prosecute, punish and redress serious breaches of fundamental rights.
 As a result of this decision, in particular, the above-mentioned Article 6, paragraph 1, of the National Reconciliation Law of 1992 will re-enter into force, insofar as it excludes from the scope of amnesty the acts and persons investigated in the report of the Truth Commission.
 […]Given that amnesty in itself is recognized by the Constitution and by IHL (Article 6, paragraph 5 of Protocol II) and constitutes a useful and vital tool for peace and national reconciliation in order to guarantee the legal certainty of persons who, in accordance with the Constitution, may be covered by the 1993 Amnesty Law, it must be understood that the amnesty will continue to apply to and must continue to protect only those persons who have not participated in acts constituting crimes against humanity and war crimes constituting serious violations of IHL, committed by either party under the cover of an organized apparatus of power, as defined in this judgment, without effect upon the criminal responsibility of the perpetrator – as a direct or indirect offender or of persons giving orders – as intermediate authors.
 As a result of this international obligation to ensure the effective legal suppression of crimes against humanity and war crimes, it is well settled that States' joint and customary recognition that statutory limitations do not apply to such offences has been raised to the level of a peremptory principle of general binding international law (jus cogens), irrespective of whether it has been incorporated in specific conventions or in domestic law, that is to say without there being any need for a specific link deriving from a given international treaty.
 Moreover, it is important to emphasize that, with regard to humane treatment and fundamental guarantees, the above-mentioned Additional Protocol II to the Geneva Conventions, ratified by El Salvador in 1978, established prohibitions applying “at any time and in any place whatsoever” which must be respected in internal or non-international armed conflicts .
 The foregoing may be construed as meaning that these prohibitions and their legal consequences, consisting in the possibility of criminal prosecution for non-compliance therewith, have been in force “at all times”, which signifies that there are no restrictions deriving from expiry dates set by municipal law to the statute of limitations for the respective acts. This means that, in the case of acts excluded from the scope of amnesty admissible under the Constitution, a precise set of international legal rules is in force in the country, in particular international humanitarian law, which prior to the armed conflict in El Salvador established the non-applicability of the statute of limitations to offences prohibited by Article 4 of Additional Protocol to the Geneva Conventions of 1949.
 For this reason, no prescription limits may be set for the prosecution, punishment or proceedings which are or would be fitting for acts prohibited by Article 4 of Protocol II, and on which [limits] reliance might be placed in order to prevent investigation, prosecution and punishment, or the serving of a sentence, in such cases as it has been determined. The same standard must apply to time bars on any respective civil proceedings.
2.b.How does the Supreme Court interpret the phrase “the broadest possible amnesty” as it appears in P II, Art. 6 (5)? How does the Supreme Court reconcile the requirements of P II, Art. 6 (5) with the conflicting obligations upon El Salvador arising from other rules of international law or its Constitution?

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Art. 4
Art. 6
Art. 144
Art. 2
Art. 6
Art. 6


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Constares GmbH pays great importance to data protection. Your personal data is collected and processed in compliance with the applicable data protection regulations, in particular the General Data Protection Regulation (GDPR). We collect and process your personal data in order to be able to offer you this website. This statement describes how and for what purpose your personal data is collected and used and what options you have in connection with your data.
Visitors and users of the online offer. In the following, we will also summarize the persons concerned as "users".
"Personal data" means any information relating to an identified or identifiable natural person (hereinafter referred to as "data subject"). An identifiable natural person is one who can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier (e.g. cookie) or to one or more special factors specific to the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person.
“Responsible person" means the natural or legal person, authority, institution or other body that alone or together with others decides on the purposes and means of processing personal data.
of our customers, prospective customers, business partners, applicants and candidates for the purpose of providing contractual services, general services and customer care.
The hosting services we use are providing the following services: Infrastructure and platform services, computing capacity, storage space and database services, security services and technical maintenance services that we use for the purpose of operating this online offering.
Here we or our hosting provider process master data, contact data, content data, contract data, usage data, meta and communication data of customers, interested parties and visitors to this website on the basis of our legitimate interests in an efficient and secure provision of this online offer in accordance with Art. 6 Para. 1 lit. f GDPR in conjunction with. Art. 28 GDPR (contractual data processing agreement).
Constares collects information about you when you use this website. We automatically collect information about your usage behavior and interaction with us and record data about your computer or mobile device. We collect, store and use data about every access to our online offer (so-called server log files). The access data includes name and URL of the accessed file, date and time of access, transferred data volume, notification of successful access (HTTP response code), browser type and browser version, operating system, referrer URL (i.e. the previously visited page), IP address and the requesting provider.
We use this log data without allocation to your person or other profiling for statistical evaluations for the purpose of operation, security and optimization of our online offer, but also for anonymous recording of the number of visitors to our website (traffic) and the extent and type of use of our website and services. We reserve the right to check the log data subsequently if there is a justified suspicion of illegal use based on concrete evidence. We store IP addresses in the log files for a limited period of time if this is necessary for security purposes or for the provision or billing of a service, e.g. if you use one of our offers. We also store IP addresses if we have a concrete suspicion of a criminal offence in connection with the use of our website. In addition, we store the date of your last visit as part of your account (e.g. when registering, logging in, clicking on links, etc.).
If you contact us (e.g. via contact form or e-mail), we store your data given for processing the enquiry and in the event that follow-up questions arise. We only store and use further personal data if you give your consent or if this is legally permissible without special consent.
We maintain online presences within social networks and platforms in order to communicate with active customers, interested parties, users and applicants and to inform them there about our services. When accessing the respective networks and platforms, the terms and conditions and the data processing guidelines of their respective operators apply.
Within our online offer, based on our legitimate interests (i.e. interest in the analysis, optimization and economic operation of our online offer within the meaning of Art. 6 para. 1 lit. f. DSGVO), we use third-party content or service offerings to incorporate their content and services, such as videos or fonts (hereinafter uniformly referred to as "Content").
This always implies that the third party providers of this content use the IP address of the users, since without the IP address they could not send the content to their browser. The IP address is therefore required for the display of this content. We make every effort to use only those contents whose respective providers use the IP address only for the delivery of the contents. Third-party providers may also use so-called pixel tags (invisible graphics, also known as "web beacons") for statistical or marketing purposes. Pixel tags" can be used to evaluate information such as visitor traffic on the pages of this website. The pseudonymous information may also be stored in cookies on the user's device and may include technical information about the browser and operating system, referring websites, visiting time and other information about the use of our online offer, as well as may be linked to such information from other sources.
On the basis of our legitimate interests (i.e. interest in the analysis, optimization and economic operation of our online offer within the meaning of Art. 6 para. 1 lit. f. DSGVO) we use external typekit fonts from Adobe Systems Software Ireland Limited, 4-6 Riverwalk, Citywest Business Campus, Dublin 24, Republic of Ireland. Adobe is certified under the Privacy Shield Agreement, which thereby provides a guarantee of compliance with European data protection laws.
https://www.linkedin.com/legal/privacy-policy . LinkedIn is certified under the Privacy Shield Agreement, which thereby provides a guarantee of compliance with European data protection laws. (https://www.privacyshield.gov/participant?id=a2zt0000000L0UZAA0&status=Active ).
The newsletter is sent out by the dispatch service "Belsignum (belmail)" (Belsignum UG, Carl-von-Linde-Str. 40, 85716 Unterschleißheim www.belsignum.com/). If you register for our free newsletter, the data requested from you for this purpose, i.e. your e-mail address and - optionally - your first and last name, will be transmitted to Belsignum. At the same time, the IP address of the Internet connection from which you access our website and the date and time of your registration are stored. As part of the registration process, we will obtain your consent to the sending of the newsletter, describe the content in detail and refer to this data protection declaration. The data collected is used exclusively for sending the newsletter - it will therefore not be passed on to third parties. The legal basis for this is Art. 6 para. 1 lit. a) GDPR.
You may revoke your consent to receive the newsletter at any time with effect for the future pursuant to Art. 7 para. 3 GDPR. All you have to do is inform us of your revocation or click the unsubscribe link contained in each newsletter.
The dispatch service provider can use the recipient's data in pseudonymous form, i.e. without assignment to a user, to optimize or improve its own services, e.g. to technically optimize the dispatch and presentation of the newsletter or for statistical purposes. However, the dispatch service does not use the data of our newsletter recipients to contact them directly or to pass on the data to third parties.
The newsletters contain a so-called "web beacon", i.e. a pixel-sized file that is retrieved from our server when the newsletter is opened or, if we use a dispatch service provider, from whose server. Within the scope of this retrieval, technical information, such as information about the browser and your system, as well as your IP address and time of retrieval are initially collected.
This information is used to technically improve the services based on the technical data or the target groups and their reading behavior based on their retrieval locations (which can be determined using the IP address) or access times. The statistical collections also include determining whether the newsletters are opened, when they are opened and which links are clicked. For technical reasons, this information can be assigned to the individual newsletter recipients. However, it is neither our endeavor, nor, if used, that of the dispatching service provider, to observe individual users. The evaluations serve us much more to recognize the reading habits of our users and to adapt our contents to them or to send different contents according to the interests of our users.
The legal basis for data processing in accordance with the above paragraphs is Art 6 para. 1 letter f) GDPR. Our interests in data processing are in particular to ensure the operation and security of the website, to investigate the manner in which visitors use the website, and to simplify the use of the website.
Information about the existence of automated decision-making, including profiling in accordance with Article 22(1) and (4) GDPR, and - at least in these cases - meaningful information on the logic involved and the scope and intended effects of such processing for you.
When personal data are transferred to a third country or an international organization, you have the right to be informed of the appropriate guarantees under Article 46 GDPR in relation to the transfer.
You have the right to request us to correct any inaccurate personal data concerning you without delay. Taking into account the purposes, you have the right to request the completion of incomplete personal data - also by means of a supplementary declaration.
You revoke your consent on which the processing was based pursuant to Article 6(1)(a) GDPR or Article 9(2)(a) GDPR, and there is no other legal basis for the processing.
The deletion of personal data is necessary to fulfil a legal obligation under European Union law or the law of the Member States to which we are subject.
If we have made personal data public and we are obliged to delete it, we will take appropriate measures, including technical measures, taking into account the available technology and the implementation costs, to inform those responsible for data processing who process the personal data that they have requested the deletion of all links to this personal data or of copies or replications of this personal data.
You have entered an objection to the processing pursuant to Art. 21 para. 1 GDPR, as long as it is not yet clear whether the justified reasons of our company outweigh yours.
When exercising your right to data transferability pursuant to para. 1, you have the right to obtain that the personal data be transferred directly by us to another person responsible, so far as this is technically feasible.
You have the right to object at any time to the processing of personal data concerning you on the basis of Article 6(1)(e) or (f) GDPR for reasons arising from your particular situation; this also applies to profiling based on these provisions. We no longer process personal data unless we can prove compelling grounds for processing that outweigh your interests, rights and freedoms, or the processing serves to assert, exercise or defend legal claims.
If we process personal data for direct marketing purposes, you have the right to object at any time to the processing of personal data concerning you for the purpose of such advertising; this also applies to profiling, so far as it is associated with such direct marketing.
You have the right to object to the processing of personal data concerning you, for scientific or historical research purposes or for statistical purposes pursuant to Art. 9 para. 1 GDPR, for reasons arising from your particular situation, unless the processing is necessary for the performance of a task in the public interest.
We make every effort to ensure the security of your personal data in accordance with the applicable data protection laws and technical possibilities.
Your personal data will be transmitted encrypted. We use the SSL (Secure Socket Layer) coding system, but point out that data transfer over the Internet (e.g. when communicating by e-mail) can have security gaps. A complete protection of data against access by third parties is not possible.
To secure your data, we maintain technical and organizational security measures which we constantly adapt to the state of the art.
Furthermore, we do not guarantee that our offer will be available at certain times; disruptions, interruptions or failures cannot be ruled out. The servers we use receive careful and regular back-ups.
If and to the extent that we involve third parties within the scope of the fulfilment of contracts, these personal data are only provided to the extent to which the transfer is necessary for the corresponding service.
In the event that we outsource certain parts of data processing ("contractual data processing agreement "), we contractually bind our contractors to use personal data only in accordance with the requirements of data protection laws and to ensure the protection of the rights of the data subject.
Data transfer to places or persons outside the EU and outside the cases mentioned in this declaration does not take place and is not planned.
Constares GmbH and Constares Financial GmbH & Co. KG reserves the right to change the data protection declaration in order to adapt it to changed legal situations or to changes in the service and data processing. However, this only applies with regard to declarations on data processing. If user consents are required or components of the data protection declaration contain provisions of the contractual relationship with the users, the changes will only be made with the users' consent.
Users are asked to inform themselves regularly about the contents of the data protection declaration. You can save and print out this data protection declaration at any time.
We provide you with this privacy statement, which relates exclusively to data collected as part of the online application process, in order to inform you about how we deal with your personal data collected as part of the application process.
Personal data is information about personal or factual circumstances of a specific or determinable natural person. This includes information such as your name, your address, your telephone number and your date of birth, but also data about your concrete career etc., which can be assigned to a specific person with reasonable effort.
If you apply to us electronically, i.e. by e-mail or via our web form, we will collect and process your personal data for the purpose of handling the application process and implementing pre-contractual measures.
By submitting an application on our recruiting page, you express your interest in taking up employment with a Constares customer or with us. In this context, you provide us with personal data which we process and store exclusively for the purpose of your job search / application.
You also have the opportunity to upload meaningful documents such as a cover letter, your CV and certificates. This may contain other personal data such as date of birth, address, etc.
Only authorized employees from the personnel area or employees involved in the application process have access to your data.
Personal data is stored exclusively for the purpose of filling the vacant position for which you have applied.
Your data will be stored for a period of 8 months beyond the end of the application process. As a rule, this is done in order to fulfil legal obligations or to ward off any claims arising from statutory regulations. We are then obliged to delete your data.
In addition, we reserve the right to store your data for inclusion in our "candidate pool" after completion of the application process in order to identify any other interesting positions for you. By accepting the data protection declaration, you consent to any further storage of your data and its inclusion in our "candidate pool".
If you receive an offer of employment with us as part of the application process and accept it, we will store the personal data collected as part of the application process for at least the duration of the employment relationship.
The data transmitted as part of your application will be transmitted via TLS encryption and stored in a database. This database is operated by HR4You GmbH, which offers personnel administration and applicant management software (https://www.hr4you.de/impressum/). In this context HR4you is our processor according to Art. 28 DS-GVO. The basis for the processing is a contract for order processing between us as the responsible office and HR4you.
Constares is a recruitment company that identifies and addresses potential candidates on behalf of clients. For this purpose, information and data on potential candidates are collected and processed from publicly accessible sources. The persons concerned are contacted by us and asked about a specific vacancy. During the contact process, information on data protection and consent to storage of personal data will also be obtained. Candidates who do not agree to a processing of personal data or do not wish to be contacted by us will be deleted.
If personal data are processed by us as responsible persons, you as the data subject have certain rights from Chapter III of the Basic Data Protection Regulation (DS-GVO), depending on the legal basis and purpose of the processing, in particular the right to information (Art.15 DS-GVO), the right to rectification (Art.16 DS-GVO), the right to deletion (Art. 17 DS-GVO), the right to limitation of processing (Art. 18 DS-GVO), the right to data transfer (Art. 20 DS-GVO) and the right to object (Art. 21 DS-GVO). If the processing of personal data is based on your consent, you have the right to revoke this data protection consent pursuant to Art. 7 III DS-GVO.
You also have the right to complain to a supervisory authority (Art. 77 DS-GVO), in particular in the Member State in which you are staying, at your place of work or at the place of suspected infringement, if you consider that the processing of your personal data is unlawful. For Constares GmbH, this is the Bayerisches Landesamt für Datenschutzaufsicht, Promenade 27 (Schloss), 91522 Ansbach. E-mail: poststelle@lda.bayern.de.
Should you have any further questions regarding our data protection or this data protection declaration, or should you wish to make use of your rights, please contact our data protection officer datenschutz@constares.de or write to Constares GmbH (for contact details, see point 2 and in the imprint) with the addition "Data protection".
Constares GmbH reserves the right to change the data protection declaration at any time in order to adapt it to changed legal situations, or in the event of changes to the service, the application procedure or similar. If you visit this recruiting page again or apply again, the new data protection declaration will apply.

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Art. 6
Art. 28
Art. 6
Art. 6
Art. 6
Art. 7
Art 6
Art. 21
Art. 9
Art. 28
Art. 7