We believe that it is a better practice is to ask “Are you legally authorized to work in the United States?” Both federal and Illinois law prohibit discrimination on the basis of an individual’s citizenship status, provided that the individual is legally authorized to work in the United States. However, you are permitted — and required — to make employment decisions on the basis of whether an individual is authorized to work in the United States, and authorization to work does not require a U.S. citizenship. 8 USC 1324a. Because both Illinois and federal law prohibit discrimination purely based on citizenship status, while also prohibiting you from hiring an individual who is not authorized to work in the U.S., we believe it is a best practice to ask whether an individual is authorized to work instead of asking whether an individual is a U.S. citizen.

Federal law prohibits employers with more than three employees from discriminating on the basis of an individual’s citizenship status, provided that the individual is a U.S. citizen, an alien with a permanent residence, or alien who is lawfully admitted to the U.S. for other reasons (such as admission as a refugee). 8 USC 1324b. In addition, the Equal Employment Opportunity Commission (EEOC) rules state that if “citizenship requirements have the purpose or effect of discriminating against an individual on the basis of national origin, they are prohibited by Title VII [of the Civil Rights Act of 1964].” 29 CFR 1606.5.

The Illinois Human Rights Act prohibits employers with more than fifteen employees from making hiring or other employment decisions based on an individual’s “citizenship status.” 775 ILCS 5/2-102(A). The term “citizenship status” means an individual’s status as a born U.S. citizen, naturalized U.S. citizen, U.S. national, or a non-U.S. citizen who is not an unauthorized alien. 775 ILCS 5/2-101(K). However, an employer may make “legitimate distinctions based on citizenship status if specifically authorized or required by State or federal law.” 775 ILCS 5/2-104(A)(9). One such law is the federal law prohibiting you from hiring an individual who is not authorized to work in the U.S. 8 USC 1324a.