Illegal immigration is one of the biggest political issues of the 21st Century in the United States, as both political parties support the reform of immigration laws in one way or another. Until the laws are reformed, the government has conscripted American employers to wage war against illegal immigration through the Immigration Reform and Control Act of 1986 (IRCA). That law requires employers to ensure that new hires have proof of their legal right to work in the U.S.
At the same time, Title VII and other discrimination laws serve an important purpose in the American workplace. So how do the courts respond when those two laws come into conflict? What if an undocumented immigrant is discriminated against?
In the first place, Title VII protects immigrants to the U.S. from discrimination based on their “national origin.” National origin means the country where the employee was born or the country from which the employee’s ancestors came. But does Title VII protect only documented immigrants who are in the country legally, or does it also protect undocumented immigrants – those who were both born elsewhere and who are not legally authorized to work in the United States? That question has divided and continues to divide the federal courts, the EEOC and the states.
In 1973, the U.S. Supreme Court held in Espinoza v. Farah Mfg. Co., that Title VII does not prohibit discrimination based on citizenship or alienage. A number of federal court, citing Espinoza, have held that “alienage” encompasses immigration status, and that as such, Title VII offers no protection to employee based on their immigration status. For example, in Cortezano v. Salin Bank, the Seventh Circuit found no Title VII violation in the termination of an employee based on her husband being an undocumented alien. Similarly, in Guimaraes v. SuperValue, Inc., the Eighth Circuit held that a supervisor’s statement that she wanted to terminate plaintiff and stop her green card process was relevant only to immigration status and was not evidence of national origin discrimination. Other federal courts, such as the Fourth Circuit in Egbuna v. Time-Life Libraries, Inc., have held that Title VII does not cover undocumented workers because they are ineligible for employment.
The EEOC has taken a dramatically different position about the workplace rights of undocumented employees under Title VII. In 1999, it issued Questions & Answers, Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws, which categorically states that Title VII protects all employees, documented or undocumented, so long as they work for employers covered by the statute. Citing the Civil Rights Act of 1991, which recognized a “mixed motive” theory of Title VII liability, it reminds employers that Title VII is violated when a prohibited factor motivated the action, even if other factors that are lawful also motivated the action. Under this theory, an employer who terminates an employee due both to her undocumented status and her national origin can be liable for national origin discrimination under Title VII. Of course, the motivational line between national origin and immigration status is a thin one: by definition, an immigrant or alien is an individual who was born outside the United States. According to the EEOC, where national origin plays a motivating role in the employer’s decision, the fact that the decision may also be based on an individual’s immigration status is irrelevant. It is unclear how the EEOC squares the notion that once an employer discovers an employee is undocumented it is legally required to terminate employment by the Immigration and Reform Act of 1986. Instead, the EEOC states:
[E] nforcing the civil rights laws on behalf of all workers supports the enforcement of the immigration laws. . . . 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.
Meanwhile, some states have enacted legislation that explicitly protects undocumented workers under state employment laws. In 2002, for example, the California Legislature enacted Senate Bill No. 1818, adding section 1171.5 to the state’s Labor Code and providing that employees enjoy all of the rights provided by state law, regardless of their immigration status. The only remedy not available to undocumented immigrants bringing employment claims is reinstatement.
Fast forward to 2011, when a California appellate court held in Salas v. Sierra Chemical Co. that an undocumented plaintiff could not sue for disability discrimination under the state Fair Employment and Housing Act, because he had used false documentation to obtain his job, had “unclean hands” and was not entitled to employment in the first place. Not surprisingly, in 2013 the California Supreme Court granted review and depublished that decision. Among the issues the Supreme Court will decide is whether federal immigration law preempts, i.e., overrides, California law, specifically Labor Code section 1171.5. The case has been fully briefed and was argued in April 2014. A decision is expected this summer.