The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

1. SUBJECT: Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws.
2. PURPOSE: This Notice Rescinds the Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws, November 26, 1999.
3. EFFECTIVE DATE: Upon receipt.
4. EXPIRATION DATE: This Notice will remain in effect until superseded.
5. ORIGINATOR: Office of Legal Counsel.
6. INSTRUCTIONS: Remove the Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws.

     __________________               ________________________________________
     Date                             Cari M. Dominguez
                                      Chair
                                 
                                 
                                 
                                 

Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws

In light of the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 122 S. Ct. 1275 (2002), the Commission is reexamining its position on remedies for undocumented workers set forth in its November 26, 1999 "Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws." In Hoffman, a National Labor Relations Act (NLRA) case, the Supreme Court held that the National Labor Relations Board's award of "backpay to an undocumented alien who has never been legally authorized to work in the United States" is "foreclosed by federal immigration policy."

The Court's holding bars an award of backpay under the NLRA to an undocumented worker for any period following the termination of his or her employment. Because the Commission's 1999 Enforcement Guidance relied on NLRA cases to conclude that undocumented workers are entitled to all forms of monetary relief - including post-discharge backpay - under the federal employment discrimination statutes, the Commission has decided to rescind that Guidance. The Commission will evaluate the effect Hoffman may have on the availability of monetary remedies to undocumented workers under the federal employment discrimination statutes.

The Supreme Court's decision in Hoffman in no way calls into question the settled principle that undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work. When enforcing these laws, EEOC will not, on its own initiative, inquire into a worker's immigration status. Nor will EEOC consider an individual's immigration status when examining the underlying merits of a charge. The Commission will continue vigorously to pursue charges filed by any worker covered by the federal employment discrimination laws, including charges brought by undocumented workers, and will seek appropriate relief consistent with the Supreme Court's ruling in Hoffman. Enforcing the law to protect vulnerable workers, particularly low income and immigrant workers, remains a priority for EEOC.