March 7, 2005Newsletter

The EEOC Issues Guidance on the Protection of Unauthorized Workers Under the Federal Discrimination Laws

Employment Update

The Equal Employment Opportunity Commission ("EEOC") recently issued an Enforcement Guidance ("Guidance") on the remedies that individuals who work in this country without proper authorization can seek in employment discrimination cases. In its Guidance, the EEOC concludes that unauthorized workers are entitled to the same relief in employment discrimination cases as are authorized workers, subject to certain narrow exceptions.

The EEOC’s Guidance sparked concern that the EEOC would require that unauthorized workers be reinstated if they have been victims of discrimination. In response to this concern, Ida Castro, the Chairwoman of the EEOC, explained that an unauthorized worker who has been subjected to unlawful discrimination would not be eligible for reinstatement unless the worker has met the Immigration and Naturalization Service’s ("INS") requirements for being legally authorized to work in this country. In addition, in its Guidance, the EEOC notes that an employer is not liable for back pay during any period when the worker is unavailable for work because the worker is out of the country. The EEOC also states that back pay will stop accruing if the worker is reinstated or cannot show work eligibility within a reasonable period after being offered reinstatement. Chairwoman Castro emphasized, though, that aside from these restrictions, the EEOC will pursue all remedies available to enforce the federal discrimination laws.

The EEOC’s reasoning in its Guidance serves as a useful reminder of the immigration and discrimination laws that apply to unauthorized workers. For instance, the EEOC notes that under the Immigration Reform and Control Act of 1986 ("IRCA"), employers cannot knowingly employ individuals who are not legally authorized to be employed in the United States and who were hired after November 6, 1986.

The EEOC also recognizes that Title VII protects all workers, regardless of whether they are United States citizens or noncitizens, from discrimination because of an individual’s race, color, religion, sex and national origin. In so doing, the EEOC reinforces its commitment to provide unauthorized workers with the same degree of protection from discrimination under Title VII as all other workers.

The EEOC further observes that courts interpreting federal labor laws also generally have held that all workers are protected by those laws. The EEOC illustrates this principle by discussing Sure-Tan v. NLRB, 467 U.S. 883 (1984), in which the employer reported five employees to the INS because the employees had participated in union activities. The employer had known that the workers were undocumented and had not reported them to the INS until they had participated in union activities. The United States Supreme Court found that retaliation was the clear motive behind the employer’s decision to report the unauthorized workers to the INS and ruled that undocumented workers are entitled to the protection of federal labor laws.

The EEOC’s Guidance signals its commitment to enforcing the federal discrimination laws to protect unauthorized workers with the same vigor as for authorized workers. The Guidance thus prompts employers to examine their own policies and practices with respect to unauthorized workers under the federal employment discrimination and immigration laws.

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