The EEOC is responsible for eliminating discrimination at the workplace. The nation's federal employment discrimination laws ensure that anyone working in this country be treated fairly and justly under the laws, and be afforded appropriate protection and redress should an employer violate these laws. The laws enforced by the EEOC serve to deter unlawful discrimination by employers.
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 who work for an employer with 15 or more employees, 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: What remedies are available under the laws enforced by the Commission for workers who are authorized to work?
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, back pay, 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: Generally, yes, but not if the award would conflict with the requirements of immigration laws. For instance, in the case of an undocumented worker, s/he cannot be reinstated unless s/he produces the work documents required by immigration law.
Q: What general 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. However, unless an individual who has been discriminated against has satisfied Immigration and Naturalization Service requirements for legal authorization to work, reinstatement would not be among the remedies available.
Q: Are there additional limitations on relief for unauthorized workers?
A: The following limitations apply:
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.
If an unauthorized worker is retaliated against, that worker is entitled to damages without regard to his or her work status.
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:
This page was last modified on October 29, 1999.
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