EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ANNOUNCES IT WILL NO LONGER CONSIDER IMMIGRATION STATUS IN REMEDYING WORKPLACE DISCRIMINATION

In a major shift in policy, the Equal Employment Opportunity Commission (EEOC) has announced it will no longer consider the citizenship status of people who make complaints about workplace discrimination. Now all employees in the US, regardless of their work authorization status, will be protected from discrimination and civil rights abuses, and will have the same legal recourse when their rights are violated.

As part of the effort to encourage undocumented workers to come forward, the EEOC has promised that it will not reveal a person’ immigration status to any other government agency. As EEOC Vice-Chairman Paul Igasaki said “What we do is discrimination enforcement.  The only way we can do that effectively is try to put that umbrella over everybody.” The INS has expressed its agreement with the decision of the EEOC. According to an INS spokesman, the agency supports any measure that will protect worker’s rights, saying its focus should not be individual undocumented workers, but smugglers and employers who exploit them.

The EEOC memo announcing the new policy provides a through discussion of the reasons for its policy change, which we will summarize here. It was not until 1986 that employers were prohibited from employing unauthorized workers.  In 1986 the Immigration Reform and Control Act made it illegal to employ unauthorized workers, but also made it illegal for employers to discriminate against workers on the basis of citizenship status.  While employers cannot hire unauthorized workers, federal anti-discrimination statutes over such workers. The Supreme Court has noted that application of federal labor laws to undocumented workers helps to improve working conditions for authorized workers, because the employer who is punished for abusing undocumented workers loses any advantage in gained in offering low wages.

The purposes of labor law and immigration law are different. Labor laws are designed to deter employment discrimination and to make whole employees who have been the victim of discrimination. Immigration laws are designed to deter illegal immigration.  Finding no inherent conflict between the two sets of laws, the EEOC then examined what types of remedies are appropriate when the employee who has suffered discrimination is not authorized to work in the US. 

Injunctive relief, designed to prevent future discrimination, is always appropriate, regardless of the employee’s status. Examples of such relief include requirements that the employer post notices stating it has been found guilty of discrimination, as well as orders that the employer stop discriminating and implement new hiring procedures. 

Under federal labor law, the victim of a discriminatory refusal to hire or termination is presumptively entitled to instatement or reinstatement.  The EEOC determined that unauthorized workers hired before 1986 share the same presumption. Workers hired after that date also share the presumption unless the employer knew the worker was unauthorized. Assuming that the unauthorized worker is able to obtain work authorization, for the EEOC, it will not matter that employment was initially unauthorized, and the worker will be offered reinstatement.

The EEOC found that unauthorized workers are entitled to back pay and other monetary damages so long as there is no conflict with immigration laws. There would likely be no conflict, and if anything, back pay would probably reinforce the goals of immigration law. By making employers who benefit from underpaying unauthorized workers pay monetary damages, the use of undocumented workers is made less profitable. Until now the fact that the worker was unauthorized was seen as a bar to relief. Under these new EEOC guidelines, it is not a bar, because the labor laws serve not only to make the wronged employee whole again, they also serve to deter employers from using unauthorized workers. 

The new regulation also prohibits failure to promote and retaliatory firing because of someone’s work authorization status. This puts employers in a delicate position. They are not supposed to hire unauthorized workers and can get in trouble for doing so. However, if the employer finds out that a worker is unauthorized, it cannot fire the worker without facing sanctions for discrimination on the basis of work authorization status. Clearly, employers will need to be especially vigilant in ensuring that they follow proper hiring procedures on the front end.

By providing full protection of federal labor laws to all workers in the US, regardless of their work authorization, the EEOC hopes to better perform its function of enforcing anti-discrimination laws and thereby create a more fair workplace for all workers in the US.

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