50 For 50: Five Decades Of The Most Important Employment Discrimination Decisions - Number 41: Discrimination Laws Apply To Undocumented Immigrants

by Hirschfeld Kraemer LLP

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.

Written by:

Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.