The
U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE CONTACT: Reginald Welch
Tuesday, October 26, 1999 David Grinberg
(202) 663-4900
TTY: (202) 663-4494
WASHINGTON - The
U.S. Equal Employment Opportunity Commission (EEOC) today issued
an enforcement guidance modifying its position on remedies
available to unauthorized workers under federal employment
discrimination laws. The guidance addresses recent legal
developments and explains the basic remedies available to this
class of workers under EEOC- enforced laws.
"This
guidance makes clear that the anti-discrimination laws under the
Commission's jurisdiction protect all employees across the
country, regardless of their work status," said EEOC
Chairwoman Ida L. Castro. "Unauthorized workers are
especially vulnerable to abuse and exploitation. It is imperative
for employers to fully understand that discrimination against
this class of employees will not be tolerated and that they will
be responsible for appropriate remedies if they violate the civil
rights laws."
Chairwoman
Castro further explained that the new guidance is fully
consistent with the nation's immigration laws, principally the
Immigration Reform and Control Act (IRCA). "If employers
were not held responsible for discrimination against unauthorized
workers, it would create an incentive for unscrupulous employers
to engage in unlawful workplace conduct," said Ms. Castro.
"This would directly undermine the enforcement of the
immigration laws by encouraging the employment of unauthorized
workers. It would also harm authorized workers who might be
denied jobs or be subjected to a work environment which tolerated
discrimination."
The new guidance
addresses the availability of remedies under the following
statutes, where an employer has unlawfully discriminated against
undocumented workers: Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, the Americans with
Disabilities Act, and the Equal Pay Act.
The guidance
explains that undocumented workers are entitled to the same
remedies as any other workers back pay, reinstatement if the
employee was unlawfully terminated, hiring if the employee was
denied a job due to discrimination, other appropriate injunctive
relief, damages and attorneys' fees except in the very narrow
situations where an award would directly conflict with the
immigration laws. The guidance also emphasizes that unauthorized
workers are fully protected by the retaliation principles of the
federal anti-discrimination laws.
The new guidance
replaces EEOC's Policy Guidance: Effect of the Immigration Reform
and Control Act on the Remedies Available to Undocumented Aliens
Under Title VII (N-915.040) issued on April 26, 1989. The
Commission re-evaluated its position on back pay in light of
important legal developments since 1989 regarding the
availability of back pay to undocumented workers under the
closely related National Labor Relations Act. In addition, the
Commission addressed other changes in the law since 1989,
principally the creation of a damages remedy under Title VII and
the Americans with Disabilities Act.
The guidance
will be available on EEOC's web site (www.eeoc.gov) shortly after
release of the document. It can also be obtained by calling or
writing to EEOC's Office of Communications and Legislative
Affairs, 1801 L Street, NW, Washington, D.C. 20507.
The EEOC
enforces Title VII of the Civil Rights Act of 1964, which
prohibits employment discrimination based on race, color,
religion, sex, or national origin; the Age Discrimination in
Employment Act, which protects workers 40 and older; the Equal
Pay Act; the Americans with Disabilities Act, which prohibits
discrimination against qualified individuals with disabilities in
the private sector and state and local governments; prohibitions
against discrimination affecting persons with disabilities in the
federal government; and sections of the Civil Rights Act of 1991.
This page was
last modified on October 26, 1999.
The
U.S. Equal Employment Opportunity Commission
| |
NOTICE |
Number 915.002 |
EEOC |
||
| |
Date |
1. SUBJECT:
Enforcement Guidance on Remedies Available to Undocumented
Workers Under Federal Employment Discrimination Laws.
2. PURPOSE:
The purpose of this Enforcement Guidance is to set forth the
Equal Employment Opportunity Commission's (EEOC) position
regarding remedies available to unauthorized workers in charges
filed under federal employment discrimination statutes. This
Enforcement Guidance rescinds and supersedes the "Policy
Guidance: Effect of the Immigration Reform and Control Act of
1986 (IRCA) on the Remedies Available to Undocumented Aliens
Under Title VII," N-915.040 (April 26, 1989).
3. EFFECTIVE
DATE: Upon issuance.
4. EXPIRATION
DATE: As an exception to EEOC Order 205.001, Appendix B,
Attachment 4, section a (5), this Notice will remain in effect
until rescinded or superseded.
5. ORIGINATOR:
Coordination and Guidance Services, Office of Legal Counsel.
6. INSTRUCTIONS:
This supersedes the "Policy Guidance: Effect of the
Immigration Reform and Control Act of 1986 (IRCA) on the Remedies
Available to Undocumented Aliens Under Title VII," N-915.040
(April 26, 1989). Discard the 1989 document and file this as
Appendix B of Section 622, Volume II of the Compliance Manual.
7. SUBJECT
MATTER: Remedies available to unauthorized workers in
employment discrimination cases.
10-26-99 /s/
Date Ida L. Castro
Chairwoman
This Enforcement
Guidance addresses the availability of remedies in cases where an
employer(1) is found to have discriminated against
unauthorized workers(2) in violation of Title VII of
the Civil Rights of 1964, the Americans with Disabilities Act
(ADA), section 501 of the Rehabilitation Act, the Age
Discrimination in Employment Act (ADEA), and the Equal Pay Act
(EPA). Based on important legal developments, the Commission is
replacing its April 26, 1989, guidance on Title VII remedies for
undocumented workers. The Commission now concludes that
unauthorized workers who are subjected to unlawful employment
discrimination are entitled to the same relief as other victims
of discrimination, subject to certain narrow exceptions which are
discussed below. The pertinent legal developments include recent
cases concerning remedies for unauthorized workers under the
National Labor Relations Act, changes in the law regarding
after-acquired evidence and mixed motive cases, and the addition
of damages to the range of available remedies.
First, the
National Labor Relations Board (NLRB) and the Second Circuit
recently concluded that unauthorized workers are eligible for
back pay under the National Labor Relations Act (NLRA). A.P.R.A.
Fuel Oil Buyers Group, 320 N.L.R.B. 408, 151
L.R.R.M. 1209 (1995), aff'd, NLRB v. A.P.R.A. Fuel
Oil Group, 134 F.3d 50 (2d Cir. 1997). The A.P.R.A.
rationale, discussed in more detail below, applies equally to the
federal employment discrimination statutes.(3)
Second, in the
context of an after-acquired evidence case, the Supreme Court
held that employee wrongdoing does not shield a discriminating
employer from liability under the civil rights laws.(4)
Similarly, Congress amended Title VII to provide that employers
are liable when discrimination is part of the reason for an
adverse employment action, even if it can show it would have
taken the same action absent the discrimination.(5)
Both changes recognize that deterrence is a central goal of the
federal employment discrimination laws and that failure to
penalize discriminating employers will undermine that goal.
Third, Congress
has added compensatory and punitive damages to the range of
available remedies under Title VII and the ADA. It did so because
it had concluded that existing remedies were ineffective and that
"additional remedies under Federal law are needed to deter
unlawful harassment and intentional discrimination in the
workplace."(6) Inasmuch as undocumented workers
are particularly vulnerable to employer abuse, awarding monetary
remedies irrespective of a worker's unauthorized status promotes
the goal of deterring unlawful discrimination without undermining
the purposes of the immigration laws.
Finally, the ADA
had not been enacted when the 1989 document was issued. This
guidance highlights the fact that the principles governing
remedies for unauthorized workers apply to all of the federal
anti-discrimination statutes enforced by the EEOC, including the
Rehabilitation Act and the ADA, as well as Title VII, the EPA,
and the ADEA.
Prior to 1986,
the immigration laws did not prohibit employers from employing
unauthorized workers, although such workers were subject to
deportation. In enacting the Immigration Reform and Control Act
of 1986 (IRCA), however, Congress made it unlawful for employers
to knowingly employ individuals who are not legally authorized to
be employed in the United States and who were hired after
November 6, 1986.(7)
To address
concerns that the employer sanction provisions would cause
discrimination against some national origin groups, IRCA
prohibits employers that have from four to fourteen employees,
and are therefore not covered by Title VII, from discriminating
on the basis of national origin against U.S. citizens and
nationals and non-citizens with work authorization.(8)
It also prohibits citizenship status discrimination and
discriminatory documentary practices by all employers who have
four or more employees.(9) IRCA's nondiscrimination
requirements are enforced by the Office of Special Counsel for
Immigration Related Unfair Employment Practices (OSC), Civil
Rights Division, at the U.S. Department of Justice.(10)
The federal
discrimination laws protect all employees in the United States,
regardless of their citizenship or work eligibility. Employers
may no more discriminate against unauthorized workers than they
may discriminate against any other employees.(11) EEOC
will therefore assure that in its enforcement of the laws,
unauthorized workers are protected to the same degree as all
other workers.
Recognizing that
federal labor laws make no distinction based on alienage, courts
have similarly generally held that all workers are protected by
those laws, regardless of citizenship or work eligibility.(12)
In the leading
case of Sure-Tan v. NLRB, 467 U.S. 883 (1984), the
Supreme Court addressed the coverage of undocumented workers in
the context of the NLRA and explained that affording those
workers the protection of American labor laws promotes the
purposes of both the labor and immigration laws.
The employer in Sure-Tan
retaliatorily reported five employees to the Immigration and
Naturalization Service (INS) because the employees had exercised NLRA-protected
rights. The employer had been aware that the workers were
undocumented and had not reported them to the INS until they
participated in union activities. It was therefore clear that
retaliation was the reason that he had reported them. The
Court concluded that applying the labor law to undocumented
workers served the purposes of immigration laws:
[a]
primary purpose in restricting immigration is to preserve jobs
for American workers . . . . Application of the NLRA helps to
assure that the wages and employment conditions of lawful
residents are not adversely affected by the competition of
illegal alien employees who are not subject to the standard terms
of employment. If an employer realizes that there will be no
advantage under the NLRA in preferring illegal aliens to legal
resident workers, any incentive to hire such illegal aliens is
correspondingly lessened. In turn, if the demand for undocumented
aliens declines, there may then be fewer incentives for aliens
themselves to enter in violation of the federal immigration laws.
467 U.S. at
893-94. This principle applies equally to the discrimination laws
within the Commission's jurisdiction.
Moreover, the EEOC
agrees with the NLRB and those courts that have concluded that
the Sure-Tan decision is unaffected by the subsequent
enactment of IRCA. A.P.R.A.,151 L.R.R.M. at 1215
("[C]ongress . . . [in enacting IRCA] expressly approved the
view of the Supreme Court in Sure-Tan that undocumented
workers are entitled to established labor protections."), aff'd,
NLRB v. A.P.R.A. Fuel Oil Buyers Group, 134 F.3d 50, 55 (2d
Cir. 1997) (NLRA).(13) Failure to protect those
workers would undermine enforcement of not only the
anti-discrimination laws, but also the immigration laws. Without
such coverage, employers have an incentive to hire workers who
cannot effectively protest unlawfully discriminatory treatment.
As the Eleventh Circuit observed, in the context of the FLSA,
"coverage of undocumented workers has a[n effect similar to
that of IRCA], in that it offsets what is perhaps the most
attractive feature of such workers - their willingness to work
[in substandard conditions. Without that
offset] . . . employers would have an incentive to
hire them."(14)
The remedies
provisions of the federal anti-discrimination laws are intended
both to deter employment discrimination and to restore the
injured employee to the position s/he would have been in absent
the discrimination. Some remedies, such as requiring the employer
to stop the discriminatory activities, adopt corrective measures,
post notices, or expand recruitment, serve primarily to prevent
future discrimination. Other remedies, such as instatement,
reinstatement, or promotion, serve primarily to make the victim
whole.
Monetary
remedies serve both purposes: they deter future discrimination(15)
and make the victim whole. Back pay is so central to the remedial
scheme that the Supreme Court has ruled that, where liability is
found, back pay is a presumptive remedy and "should be
denied only for reasons which, if applied generally, would not
frustrate the central statutory purposes of eradicating
discrimination throughout the economy and making persons whole
for injuries suffered through past discrimination."(16)
Compensatory and punitive damages also serve make-whole and
deterrence purposes.(17) Moreover, because a private
suit serves important public purposes, the litigant will not be
denied relief even if s/he has engaged in wrongdoing.(18)
The provisions
of the Immigration and Nationality Act (INA) serve a different
purpose - the deterrence of illegal immigration. The INS
apprehends and removes those who have violated applicable
immigration laws and imposes sanctions on employers who knowingly
employ unauthorized workers hired after November 6, 1986. The
purposes and remedial schemes of immigration and discrimination
laws are not at odds with each other. Thus, where an unauthorized
worker is found to have been a victim of employment
discrimination, remedy awards can and should fulfill the goals of
the employment discrimination statutes without undermining the
purposes of the immigration laws.
Remedies that
serve only to prevent future discrimination are unaffected by the
immigration laws and remain available to redress violations of
the employment discrimination laws without regard to an
employee's work status. Such injunctive relief may include, for
example, orders to post notices that the employer has been found
to have discriminated, orders to stop the discriminatory
practices, orders to purge personnel records of information
regarding discriminatory actions, and orders to adopt some
specific corrective action, such as implementing new hiring
procedures, keeping data on all disciplinary actions, or
providing training.
Under federal
employment discrimination laws, victims of discriminatory refusal
to hire or discriminatory termination are presumptively entitled
to instatement or reinstatement.(19) The Commission
concludes that the same presumption applies to unauthorized
workers who were hired on or before November 6, 1986 because IRCA
does not prohibit employers from continuing to employ workers
hired on or before that date.(20) This presumption
also applies to workers hired after November 6, 1986 unless the
employer knows that the worker is unauthorized, in which case the
worker's eligibility for reinstatement depends on being able to
satisfy IRCA's verification requirements within a reasonable
time.(21)
The Sure-Tan
Court held that unauthorized workers are protected by
the NLRA and remanded the case to the Board to determine what
remedies were appropriate in light of the fact that the workers
had left the country and it was not clear whether they had
returned.(22) The Court placed only one constraint on
the remedies the Board could order; namely, any offer of
reinstatement was to be conditioned on the workers' lawful
reentry. The Court imposed that restriction to avoid encouraging
illegal reentry and thereby undermining the purpose of the
immigration law.(23) In so doing, the Court made clear
that the workers' original illegal entry did not preclude
reinstatement or back pay.
At the time Sure-Tan
was decided, employers were not prohibited from employing
unauthorized workers. In A.P.R.A., the Second Circuit
considered whether, by enacting IRCA to make employing
unauthorized workers illegal, Congress altered the Sure-Tan
rule that unauthorized workers were entitled to relief.
As in Sure-Tan,
the A.P.R.A. employer knowingly employed unauthorized
workers and retaliated against them for participating in union
activity. In A.P.R.A., however, the workers had remained
in the United States until the time of the decision. The Board
concluded that "if full remedies are not granted, the
illegitimate economic advantage to unscrupulous employers that
knowingly employ undocumented workers has [a] . . . corrosive
effect on congressional policies respecting the
workplace . . . ."(24) To
avoid a conflict with IRCA's prohibition against employing
unauthorized workers, the Board ordered that the offer of
reinstatement be conditioned on the workers' ability, within a
reasonable period of time, to satisfy IRCA's normal verification
of work eligibility requirements. In affirming the Board's order
of conditional reinstatement, the Second Circuit explained that
the Board "quite clearly tailor[ed] the remedy for the
violation of the NLRA to the restrictions of" IRCA.(25)
In addition, the court observed that the Board's remedy,
"felicitously keeps the Board out of the process of
determining an employee's immigration status, leaving compliance
with IRCA to the private parties to whom the law applies.... the
Board is not charged with the enforcement of the complex U.S.
immigration laws."(26)
Like the Board,
the EEOC is not charged with the enforcement of IRCA and should
not participate in "the process of determining an employee's
immigration status." Therefore, EEOC will neither collect
nor evaluate evidence regarding a worker's status.
Unauthorized
workers are entitled to back pay and appropriate damages on the
same basis as other workers, unless the award would conflict with
the purposes of the immigration laws. In the great majority of
instances, monetary awards do not conflict with the purposes of
immigration laws, but enhance them. Without monetary awards,
including damages, employers who are unscrupulous may consider
penalties under immigration law to be offset by the savings of
employing unauthorized workers, thus defeating the objectives of
immigration, civil rights, and labor laws and allowing employers
to profit from their own wrongdoing.(27)
There are no
limitations on damages for unauthorized workers, beyond those
which would apply in any other case. However, there is a narrow
limitation on the availability of back pay. To fulfill the
requirements of the immigration laws, the Sure-Tan Court
ruled that "in computing back pay, the employees must be
deemed unavailable for work (and the accrual of back pay
therefore tolled) during any period when they were not lawfully
entitled to be present and employed in the United States."(28)
The Commission construes this language to limit back pay relief
only where, as in Sure-Tan, the worker is unavailable
for work by virtue of being out of the country.(29)
The Commission
adopts this interpretation for several reasons. The Supreme Court,
in Sure-Tan, did not hold that the employees' original
unlawful entry precluded awards of reinstatement or back pay. Its
reversal of the appellate court's award of six months back pay
was, instead, because it regarded as unduly speculative the
appellate court's surmise that, absent the unlawful retaliation,
the workers would have worked for another six months.(30)
In addition, " Sure-Tan gave no indication that it
was overruling a significant line of [NLRB] precedent that
disregards a discriminatee's legal status, as opposed to
availability for work, in determining his or her
eligibility for back pay."(31)
The Commission
concludes that IRCA does not preclude awarding back pay and
damages to unauthorized workers because, as the Second Circuit
has observed,
[while]
IRCA established sanctions for employers who knowingly hire or
continue to employ illegal aliens, . . . and also introduced
procedures to assure that undocumented workers are not able to
gain employment in the United States, . . . IRCA does not
materially change the policy considerations underlying the
previous decisions . . . . The primary purpose of IRCA
was to make it more difficult to employ undocumented workers and
to punish the employers who offer jobs to these workers
. . . . Congress sought to reduce the availability
of jobs for undocumented workers without adversely affecting
working conditions within those jobs.
A.P.R.A., 134
F.3d at 55.(32)
Significantly,
the conclusion that employers must make monetary awards to
victims of discrimination despite lack of work authorization
comports with the rules governing cases in which the employer is
guilty of discrimination but the employee is also guilty of
wrongful acts that would have motivated the employer to terminate
the employment relationship. The governing principle is
that, because monetary remedies serve not only remedial but also
deterrence purposes, employee wrongdoing does not bar relief.(33)
In short,
employers who discriminate against unauthorized workers are
liable for monetary relief, including compensatory, punitive, or
liquidated damages, to the same extent as for authorized workers.
An employer is not liable for back pay accruing during any period
during which the worker is unavailable for work because s/he is
out of the country.(34) In addition, back pay will
stop accruing if the worker is reinstated, or, within a
reasonable period of time after being offered instatement or
reinstatement,(35) the worker cannot show work
eligibility.
The undocumented
status of workers is never a justification for subjecting them to
discriminatory terms or conditions of employment or for failing
to promote them. Thus, for example, workers who have been
discriminatorily undercompensated or harassed while working are
entitled to all appropriate relief, including full back pay, for
the period worked, even if they have subsequently left the
country. They were clearly "available" for work for
periods during which they were actually working.
Unauthorized
workers are particularly vulnerable to threats to report them to
INS. If such a threat or report is made because a worker opposed
unlawful discrimination or participated in a proceeding under the
anti-discrimination laws, it constitutes unlawful retaliation. In
every case in which the employer asserts that the worker is
unauthorized and appears to have acquired that information after
that worker complained of discrimination, EEOC will determine
whether the information was acquired through a retaliatory
investigation.(36) If the investigation was
retaliatory, the employer is liable for monetary damages for
retaliation without regard to the worker's actual work status as
well as for appropriate equitable relief.
Attorneys' fees
and costs are available to unauthorized workers on the same terms
as to other workers who are prevailing parties under laws
enforced by the Commission.(37) Attorneys' fees and
costs are available in mixed motives cases, even though
reinstatement, back pay, and damages are not.(38)
As in any
discrimination case, an employer may be able to limit the
remedies available for its discriminatory acts if it can prove
that it acted from mixed motives, i.e., that it would
have taken the same action even absent the discrimination,(39)
or that, after the discriminatory act, it acquired evidence that
would have caused it to take the same adverse action.(40)
A worker's unauthorized status can be a legitimate reason that
may form the basis for a mixed motive or after-acquired evidence
defense and thereby limit the available remedies.
In mixed motive
cases, the employer can be liable for attorneys' fees and
injunctive relief, but the complaining party is not entitled to
reinstatement, back pay, or any damages.(41) In
after-acquired evidence cases, if the employer can show that it
would not have employed the person after learning of his or her
unauthorized status, the worker would not typically be entitled
to reinstatement and the period during which back pay accrues
would be cut off as of the date that the employer discovered the
unauthorized status.(42) Punitive damages and damages
for emotional harm would be unaffected by the after-acquired
evidence.(43)
1. To simplify
the discussion, the term "employer" in this document
includes not only covered employers but also labor organizations
and employment agencies. The principles in the guidance also
apply to federal employers.
2. For purposes
of this document, the term "undocumented or unauthorized
worker" means, with respect to employment at a particular
time, one who is not a citizen or national of the United States
and is neither (1) lawfully admitted for permanent residence in
the United States, nor (2) authorized by law to work. See
Immigration and Nationality Act, as amended by the Immigration
Reform and Control Act of 1986, 8 U.S.C. § 1324a (h)(3); see
also 8 C.F.R. § 274a.1.
3. The
interpretation of the back pay provision of the NLRA is relevant
to Title VII since Title VII's "back pay provision was
expressly modeled on the back pay provision of the National Labor
Relations Act." Albemarle Paper Co. v. Moody, 422
U.S. 405, 419 (1975). The conclusion in the 1989 document, that
unauthorized workers who had been discriminatorily terminated or
not hired were not entitled to back pay, accorded with the
position of the NLRB at that time.
4. McKennon
v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).
5. Section
703(m) of Title VII, 42 U.S.C. § 2000e-2(m).
6. 42 U.S.C.
§ 1981a, note. See also H.Rep. No. 40(I), 102d
Cong., 1st Sess. 69, reprinted in 1991
U.S.C.C.A.N. 549, 607 ("Making employers liable for all
losses - economic and otherwise - which are incurred as a
consequence of prohibited discrimination, . . . will serve as a
necessary deterrent to future acts of discrimination, both for
those held liable for damages as well as the employer community
as a whole. . . . Back pay as the exclusive monetary remedy
under Title VII has not served as an effective deterrent, and,
when back pay is not available . . ., there is simply no
deterrent.").
7. 8 U.S.C.
§ 1324a. Criminal penalties can be imposed in cases
involving a pattern or practice of knowingly employing
unauthorized workers. Id. Congress further amended the
Immigration and Nationality Act in 1990, imposing civil penalties
on individuals who provide fraudulent immigration documents.
8 U.S.C. § 1324c (1994).
8. 8 U.S.C.
§ 1324b(a)(1).
9. 8 U.S.C.
§ 1324b(a)(1)(B) and § 1324b(a)(6). IRCA's protection
against citizenship discrimination applies only to U.S. citizens
or nationals, permanent residents, refugees, asylees, and
temporary residents. Permanent residents, however, must apply for
naturalization within six months of eligibility to remain within
the protected class. 8 U.S.C. § 1324b(a)(3). U.S. citizens,
nationals, and all individuals with work authorization are also
protected by IRCA's prohibition against unfair documentary
practices, such as discriminatorily requesting more or different
documents than required by 8 U.S.C. § 1324a, or refusing to
honor documents that appear genuine. 8 U.S.C.
§ 1324b(a)(6).
IRCA's
nondiscrimination provisions are not directly germane to the
remedies issues discussed in this guidance. The references to
IRCA in this guidance relate only to the employer sanction
provisions.
10. Charges
raising issues under those provisions should be referred to OSC
as provided in the Memorandum of Understanding (MOU) between OSC
and EEOC. 63 Fed. Reg. 5518 ( Feb. 3, 1998).
11. See
Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) (Title
VII protects non-citizens against race, color, sex, religious,
and national origin discrimination); EEOC v. Hacienda Hotel,
881 F.2d 1504, 1517 (9th Cir. 1989) (plaintiffs were subject
to Title VII's protections notwithstanding their status as
undocumented workers ); Rios v. Enterprise Ass'n Steamfitters
Local Union 638 of U. A., 860 F.2d 1168, 1173 (2d Cir. 1988)
(same). But see Egbuna v. Time Life Libraries, Inc., 153
F.3d 184 (4th Cir. 1998), cert. denied, 119 S.Ct. 1034
(1999), in which the court took the contrary view: that an
applicant who is unauthorized has no cause of action under Title
VII for an allegedly discriminatory refusal to hire. For the
reasons discussed in this guidance, the Commission disagrees with
the Fourth Circuit.
12. While this
conclusion is based in part on the fact that the labor laws
protect "any individual," the same rationale applies to
the Equal Pay Act, which, although part of the Fair Labor
Standards Act (FLSA), refers to "employees" rather than
to "any individual." Like Title VII, the FLSA contains
no exemption for unauthorized workers. Patel v. Quality Inn
South, 846 F.2d 700, 704 (11th Cir. 1988) "[N]othing in
IRCA or its legislative history suggests that Congress intended
to limit the rights of undocumented . . . [workers] under the
FLSA . . . ."), cert. denied, 489 U.S. 1011
(1989).
13. See also
EEOC v. Switching Systems Div. of Rockwell Int'l Corp.,
783 F. Supp. 369, 374 (N.D. Ill. 1992) ("Title VII's
protections extend to workers who may be in this country either
legally or illegally"; however, no Title VII violation
because employer's policy discriminated, if at all, only on the
basis of citizenship and not national origin) (post-IRCA); EEOC
v. Tortilleria "La Mejor," 758 F. Supp. 585, 591
(E.D. Cal. 1991) (same); and Patel, 846 F.2d at 704
(FLSA applies to undocumented workers post-IRCA). But see
Egbuna, 153 F.3d 184 (because IRCA renders unauthorized
workers unqualified to work, an unauthorized worker cannot
challenge hiring discrimination). Cf. EEOC v.
Hacienda Hotel, 881 F.2d 1504, 1517 n.11 (9th Cir. 1989)
("although we need not decide the issue in this case [which
arose pre-IRCA], it may well be that [IRCA] changes the mix of
policy considerations underlying the case law which supports our
conclusion that undocumented employees may recover back pay in a
Title VII action") (citation omitted).
14. Patel, 846
F.2d at 704. See also A.P.R.A., 151 L.R.R.M. at 1215
("Congress believed that providing . . . [unauthorized
workers] the same protections . . . afforded to American
employees was the most effective means of eliminating the
economic incentives for employers to hire undocumented . . .
[workers]"), aff'd, 134 F.3d at 56.
15.
If
employers faced only the prospect of an injunctive order, they
would have little incentive to shun practices of dubious
legality. It is the reasonably certain prospect of a [monetary]
award that 'provide[s] the spur or catalyst which causes
employers and unions to self-examine and to self-evaluate their
employment practices and to endeavor to eliminate, so far as
possible, the last vestiges of an unfortunate and ignominious
page in this country's history.'
Albemarle
Paper Co. v. Moody, 422 U.S. 405, 417-18
(1975) (citation omitted).
16. Id. at
421.
17. For detailed
information on appropriate compensatory and punitive damage
awards under Title VII and the ADA, see "Enforcement
Guidance on Compensatory and Punitive Damages Available Under
§ 102 of the Civil Rights Act of 1991," EEOC
Compliance Manual (BNA) N:6071, 6076 (July 14, 1992). Liquidated
damages are available for violations of the Equal Pay Act and for
willful violations of the ADEA and track the amount of the back
pay award. See Section 7(b) of the ADEA, 29 U.S.C.
§ 626(b), and Section 16(b) of the FLSA, 29 U.S.C. §
216(b).
18. McKennon,
513 U.S. at 358, citing Alexander v. Gardner-Denver Co.,
415 U.S. 36, 45 (1974).
19. See,
e.g., Roush v. KFC Nat'l Management Co., 10 F.3d 392, 398
(6th Cir. 1993), cert. denied, 513 U.S. 808 (1994)
(ADEA); Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th
Cir.), cert. denied, 502 U.S. 963 (1991) (ADEA); Henry
v. Lennox Indus., Inc, 768 F.2d 746, 752 (6th Cir. 1985)
(Title VII). Of course, the presumption can be overcome. For
example, the employer may be able to show that the employee would
not have gotten the job even absent the discrimination.
20. INS
regulations provide that such workers are
"grandfathered" and not subject to IRCA's employment
verification requirements. 8 C.F.R. § 274a.7(a). The
regulations further provide that wrongful termination followed by
reinstatement should not be considered a break in service
sufficient to cost those workers their "grandfathered"
status. 8 C.F.R. § 274a.2(b)(1)(viii)(5).
21. Except in
this very narrow circumstance, employers may not request or
reexamine I-9 documents of workers returning from a
discriminatory discharge. 8 U.S.C. § 1324b(a)(6); 8 C.F.R. §
274a.2(b)(1)(viii).
22. Sure-Tan,
467 U.S. at 904-06. INS permitted the Sure-Tan
plaintiffs to leave the country voluntarily in lieu of
deportation, and they did so immediately.
23. Id.
24. A.P.R.A.,
151 L.R.R.M. at 1216.
25. A.P.R.A.,
134 F.3d 50, 57.
26. Id.
27. Granting
unlawful workers full redress for violations . . . should act as
a deterrent to such unprincipled and opportunistic employers, and
level the competitive playing field between them and the vast
majority of employers in the United States that recognize and
respect the rights of their employees and that carefully follow
the procedures that IRCA requires.
A.P.R.A.,151
L.R.R.M. at 1216, aff'd, 134 F.3d at 56. See also
Patel, 846 F.2d at 704-05 (FLSA).
28. 467 U.S. at
903.
29. The Second
and Ninth Circuits support this position. A.P.R.A., 134
F.3d at 54 (post-IRCA); Rios, 860 F.2d. 1168 (2d Cir.
1988) (pre-IRCA); Local 512, Warehouse and Office Workers'
Union v. NLRB, 795 F.2d 705 (9th Cir. 1986) (pre-IRCA).
The Seventh
Circuit took a contrary position in Del Rey Tortilleria, Inc.
v. NLRB, 976 F.2d 1115 (7th Cir. 1992), holding that Sure-Tan
prohibits awards of back pay to undocumented workers under the
NLRA. However, in his dissent, Judge Cudahy noted that the
Supreme Court's reference to employees being "lawfully
entitled to be present and employed in the United States,"
was a quote from the decision that he wrote for the Circuit in Sure-Tan,
and that he was referring to workers who were not in the country
and could not legally return. Id. at 1123-24. Moreover,
the Seventh Circuit explicitly declined to decide whether the
same rule would apply to Title VII. Id. at 1122 n.7.
That rule should not apply to Title VII, the ADA, or the ADEA
because part of the court's rationale was that "the award
provisions of the NLRA are remedial, not punitive, in
nature." Id. at 1119. In contrast, Title VII, the
ADA, and the ADEA provide for punitive damages (ADEA liquidated
damages are punitive in nature), and back pay under those
statutes serves not only a remedial, but also a deterrent
function. See Albemarle Paper Co. v. Moody, 422 U.S. at
418-19, 421.
The Commission
is persuaded that Judge Cudahy's dissent and the decisions of the
Second and Ninth Circuit are more soundly reasoned and more
consistent with the language and purposes of the employment
discrimination laws.
30. Sure-Tan,
467 U.S. at 900-01.
31. See
A.P.R.A., 134 F.3d at 54, citing Local 512, 795
F.2d 705, 717 (9th Cir. 1986) (emphasis added).
32. This
conclusion is supported by IRCA's legislative history. The report
of the House Education and Labor Committee on IRCA stated, inter
alia, the following:
[t]he
committee does not intend that any provision of this Act would
limit the powers of State or Federal labor standards agencies
such as the . . . Equal Employment Opportunity Commission . . .
to remedy unfair practices committed against undocumented
employees for exercising their rights before such agencies or for
engaging in activities protected by these agencies. To do
otherwise would be counter-productive of our intent to limit the
hiring of undocumented employees and the depressing effect on
working conditions caused by their employment.
H.R. Rep. No.
99-682(II), 99th Cong., 2d Sess. 8-9 (1986), reprinted
in 1986 U.S.C.C.A.N. 5757, 5758. See also A.P.R.A.,
134 F.3d at 56 n.3.
33. McKennon,
513 U.S. at 357.
34. Following
the dictate of Sure-Tan, a monetary award should not
induce illegal reentry. Thus, if the worker's location is known,
the monetary award should be sent to him/her.
35. An offer of
reinstatement must comport with the standards set forth in EEOC
v. Ford Motor Co., 458 U.S. 219 (1982).
36. See
EEOC Enforcement Guidance: After Acquired Evidence, 8
FEP Manual 405:7331, 7335 (Dec. 14, 1995).
37. See Section
706(k) of Title VII, 42 U.S.C. § 2000e-5(k); Section 16(b) of
the FLSA (EPA), 29 U.S.C. § 216(b); Section 7(b) of the ADEA, 29
U.S.C. § 626(b); and Section 505 of the ADA, 42 U.S.C. § 12206.
38. See Sections
706(g)(2)(B)(i) and (ii) of Title VII, 42 U.S.C. §§
2000e-5(g)(2)(B)(i),(ii).
39. See
Section 703(m) of Title VII, 42 U.S.C. § 2000e-2(m) (liability
is established when the complaining party proves that a
prohibited factor motivated the adverse action, even though other
factors also motivated the action).
40. See
McKennon v. Nashville Banner Publishing Co., 513 U.S. 352,
361-62 (1995) (the fact that the employer could have terminated
the employee for misconduct is irrelevant to liability if the
employer was not motivated by such misconduct; only the remedy is
affected). See also EEOC Enforcement Guidance:
After-Acquired Evidence, 8 FEP Manual 405:7331 (Dec. 14,
1995).
41. Section
706(g)(2)(B)(ii) of Title VII, 42 U.S.C. § 2000e-5(g)(2)(B)(ii).
42. McKennon,
513 U.S. at 360 (if employer can prove that it would have
terminated the employee when it learned of specific misconduct,
it need not reinstate her and the back pay period will end on the
date that the employer discovered the evidence).
43. See EEOC
Enforcement Guidance: After-Acquired Evidence, 8 FEP Manual
405:7331, 7333-37 (Dec. 14, 1995) (explaining effect of
after-acquired evidence on back pay and damages).
This page was
last modified on October 26, 1999.
The
U.S. Equal Employment Opportunity Commission
This guidance
explains the availability of remedies under Title VII, the Age
Discrimination in Employment Act, the Americans With Disabilities
Act and the Equal Pay Act where an employer has unlawfully
discriminated against undocumented workers. The guidance
supersedes "Policy Guidance: Effect of the Immigration
Reform and Control Act on the Remedies Available to Undocumented
Aliens Under Title VII," N-915.040 (April 26, 1989).
Q. Are
undocumented workers protected under the federal
anti-discrimination laws?
A: Yes. The
federal employment discrimination laws protect all employees in
this country, including those who are not authorized to work.
Q:
Doesn't this create a conflict with the immigration laws which
prohibit employers from employing unauthorized workers?
A: No. In fact,
enforcing the civil rights laws on behalf of all workers supports
the enforcement of the immigration laws, principally the
Immigration Reform and Control Act (IRCA). If employers were not
held responsible for discriminating against unauthorized workers,
it would create an incentive for unscrupulous employers to employ
and exploit these workers. This would directly undermine the
enforcement of the immigration laws by encouraging the employment
of unauthorized workers. It would also harm authorized workers
who might be denied these jobs or be subjected to a workplace
which tolerated discrimination.
Q. Why
did the Commission change its position from the 1989 Policy
Guidance?
A. In 1989, the
Commission concluded that, because IRCA prohibited employers from
employing undocumented workers hired after November 6, 1986, such
workers were not entitled to reinstatement or to back pay for the
period when they had not worked because of a discriminatory
failure to hire or termination. Such workers were, however,
entitled to back pay for any periods in which they were working
for the employer but were discriminatorily underpaid.
Legal
developments since 1989 persuaded the Commission that its
position regarding back pay was no longer correct. In addition,
the Commission determined that it was important to address other
important legal developments regarding remedies. In particular:
·
The Second Circuit Court of Appeals affirmed a decision of the
National Labor Relations Board (NLRB v. A.P.R.A. Fuel Oil Group)
that unauthorized workers are eligible for back pay under the
National Labor Relations Act (NLRA) and that back pay should only
be cut off after the worker leaves the country and is not
eligible to return. The court also stressed that imposing
monetary penalties on employers who violated the law best served
the goals of the NLRA and was fully consistent with the goals of
the immigration laws. The Commission concluded that because Title
VII's back pay provision was modeled on the NLRA, the same
analysis should apply.
·
Congress enacted the Civil Rights Act of 1991, which
§
provided that Title VII is violated when a prohibited factor
motivated the employer's action, even if other, lawful factors -
such as unauthorized immigration status - also motivated the
action; and
§
provided for compensatory and punitive damages under Title VII
and the ADA based on Congress' finding that damages are necessary
to both compensate victims of discrimination and to deter future
violations.
·
The Supreme Court's decision in McKennon v. Nashville Banner
Publishing Co. made clear that an employer is responsible for its
discriminatory actions -- even if, after the action, the employer
discovers information that would have justified the action on
other, nondiscriminatory grounds. Under McKennon, an employer's
discovery that a worker is undocumented will not protect it from
liability for a discriminatory action it previously took with
regard to that worker.
Q.
What remedies are available under the laws enforced by the
Commission?
A. The basic
remedies available under these laws are reinstatement if the
employee was unlawfully terminated, instatement if the employee
was discriminatorily denied a job, backpay, other appropriate
injunctive relief, damages, and attorneys' fees.
Q: Are
undocumented workers entitled to the same remedies available to
all other workers for violations of the laws enforced by the
Commission?
A. Yes, except
for the very limited situation where the award would conflict
with the purposes of immigration laws.
Q. How
might an award conflict with the purposes of immigration laws?
A. An award that
encourages employers to knowingly employ unauthorized workers, or
that encourages workers to illegally reenter the country, would
conflict with the immigration laws. Otherwise, awards that
compensate employees for unlawful discrimination will further the
purposes of both the civil rights and the immigration laws.
Q.
What are the limitations on relief for unauthorized workers?
A. The following
narrow limitations apply:
·
An unauthorized worker is not eligible for back pay for the
period after the unauthorized worker leaves the country and is
not legally eligible to return.
·
If an employer knows that a worker who was hired after November
6, 1986 is unauthorized, reinstatement of that worker can be
conditioned on the worker being able to satisfy IRCA's
verification requirements within a reasonable period of time.
§
This condition does not apply to workers who were employed by the
employer on or before November 6, 1986, because IRCA does not
require employers to seek work authorization documents from those
workers.
These exceptions
do not apply to workers who have been discriminatorily underpaid
while employed, harassed, not promoted, or otherwise
discriminated against in the terms and conditions of employment.
They are entitled to full back pay and appropriate damages. In
all other circumstances, unauthorized workers are entitled to the
same remedies to which all other workers are entitled.
Q: Do
other limitations on remedies apply to unauthorized workers?
A: Generally
applicable limitations on the availability of certain remedies
apply equally to unauthorized workers as all other workers. In
"mixed motive" cases, if an employer can show it would
have taken the same action against the worker even absent the
discrimination, the employer is not required to reinstate the
employee or pay back pay or damages. In "after-acquired
evidence" cases, if, after the employer takes a
discriminatory action against an employee, the employer learns
that the employee has engaged in wrongdoing for which the
employer would have taken the same action, remedies may be
limited. In both mixed motive and after-acquired evidence cases,
however, the employer remains fully liable for the wrongdoing.
Q. Are
unauthorized workers protected by the retaliation principles of
the federal antidiscrimination laws?
A. Yes. Such
workers are particularly vulnerable to threats to report them to
the INS or other forms of retaliation and EEOC takes the concern
of retaliation very seriously.
·
It is unlawful to threaten to report, or to report a worker to
INS because a worker opposed unlawful discrimination or
participated in a proceeding under the anti-discrimination laws.
·
Where the employer appears to have acquired information about a
worker's unauthorized status after that worker complained of
discrimination, the Commission will investigate whether the
information was acquired through a retaliatory investigation.
If an
unauthorized worker is retaliated against, that worker is
entitled to damages without regard to his or her work status.
This page was
last modified on October 26, 1999.