EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

This document was rescinded in December 2019 as part of EEOC's effort to provide guidance and information that is current, accurate, and clear.

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Undocumented Workers

January 31, 2000

Dear

This is in response to your letter of November 15, 1999, to the Equal Employment Opportunity Commission (EEOC), raising concerns about the recent issuance of a policy document that addresses issues of discrimination against undocumented workers. Specifically, you express your dissatisfaction with the policy entitled Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws ("Guidance"), which was approved by the EEOC and signed on October 22, 1999.

The EEOC enforces the federal employment discrimination laws, including Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., which prohibits employment discrimination on the bases of race, color, sex, religion, and national origin; the Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206 (d), which prohibits employers from discriminating within any establishment between employees of the opposite sex performing substantially equal work; the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., which protects individuals age 40 and older from employment discrimination because of age; and Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., which bars employment discrimination against qualified individuals with disabilities on the basis of disability.

The purpose of the Guidance you question is to explain the availability of remedies under the referenced laws where an employer has unlawfully discriminated against undocumented workers. The Guidance does not support nor approve the hiring of undocumented workers as has been misstated in some articles in the press nor does it limit the ability of any employer to terminate an undocumented worker because of his/her undocumented status. The federal employment discrimination laws protect all employees in this country who work for an employer with 15 or more employees, regardless of the worker's immigration status. The Guidance makes clear that if an employer does hire an undocumented worker, and harasses or otherwise exploits or abuses that worker because of, for example, race, color, sex, religion, national origin, age or disability, it must pay the consequences of that discrimination.

The Immigration and Naturalization Service (INS) of the United States Department of Justice (DOJ) is primarily responsible for enforcing the immigration laws in this country and that agency determines who is in fact an unauthorized worker and who should be deported. The EEOC is not authorized to make that determination. Lawful compliance with laws enforced by the EEOC does not conflict with an employer's responsibility to comply with immigration laws.

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 tolerates discrimination.

We appreciate the opportunity to address the concerns that you raise concerning this issue. If you are interested in learning more about the EEOC's new guidance on the remedies available to undocumented workers, you may visit EEOC's Internet web site, at www.eeoc.gov, which contains the new Guidance as well as "Questions and Answers" on the subject. Extensive information about other aspects of the discrimination laws enforced by EEOC are located there as well.

We hope this information clarifies any questions that you may have concerning the EEOC's position on discrimination against unauthorized workers.

Sincerely,

This page was last modified on December 18, 2019.