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This document was rescinded in December 2019 as part of EEOC's effort to provide guidance and information that is current, accurate, and clear.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

Dear [sanitized]:

This is in response to your October 27, 1999, letter regarding your dissatisfaction with the U.S. Equal Employment Opportunity Commission's ("EEOC" or "Commission") recently-issued policy entitled Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws ("Guidance"), which was approved by the Commission and signed on October 22, 1999. This letter is designed to explain the Commission's new policy in more detail.

The EEOC's new Guidance first makes clear that federal laws against employment discrimination protect all employees in the United States, regardless of their citizenship or work eligibility. But contrary to some misstatements in the press, the Guidance neither supports the hiring of undocumented workers nor limits the ability of an employer to terminate a worker because of his/her undocumented status. Rather, it explains that an employer that unlawfully harasses or otherwise exploits or abuses its employees is subject to the same penalties whether the employee is documented or undocumented.

The Commission believes that its policy promotes the goals of both labor and immigration laws. If employers were not subject to the same standards for discriminating against undocumented as for documented workers, unscrupulous employers would have an incentive to employ and exploit them. This, in turn, would undermine immigration laws that are designed to discourage the employment of undocumented workers and would harm American and other authorized workers who might be denied these jobs or be subjected to a workplace which tolerated discrimination. The Supreme Court and several courts of appeals have recognized this very point. Sure-Tan v. NLRB, 467 U.S. 883 (1984) (National Labor Relations Act (NLRA)); NLRB v. A.P.R.A., 134 F.3d 50 (2d Cir.1997) (NLRA); Rios v. Enterprise Association Steamfitters Local Union 638, 860 F. 2d 1168 (2d Cir. 1988) (Title VII of the Civil Rights Act of 1964); Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988) (Fair Labor Standards Act);Local 512 v. NLRB, 795 F.2d 705 (9th Cir.1986) (NLRA).

It is worth noting that the Guidance addresses only the issue of remedies that are available if discrimination has been proved. In a discrimination case, the employee has the burden of proving that discrimination was the reason for the adverse employment action. In the context of a discharge or refusal to hire, it will be difficult, as a practical matter, for an

undocumented worker to make that showing unless the employer has a history of knowingly employing undocumented workers. Thus, remedies are unlikely to be an issue unless the employer has such a history or the case involves discriminatory pay, harassment, or other discriminatory job conditions.

Where unlawful discrimination has been proved, standard remedies include reinstatement, back pay, and, if appropriate, monetary damages. However, even an employer who has engaged in unlawful discrimination can avoid or limit the extent of its monetary liability if it shows that it acted for legal as well as illegal motives, i.e., that it would have taken the same action even absent the discrimination, or that, after the discriminatory act, it acquired evidence that would have caused it to take the same adverse action. Employers who have a practice of illegally employing unauthorized workers will be unable to make such a showing.

Additional limitations on remedies apply to undocumented workers to avoid any conflict with immigration law. Thus, an employer need not offer the normal remedy of reinstatement unless the worker can show that s/he is authorized to work. Moreover, back pay is not available to an undocumented worker for any period during which s/he was out of the country and not legally permitted to return.

We appreciate the opportunity to address this issue for you, [sanitized]. 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 https://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 the EEOC are located there as well. Please keep in mind that this is not legal advice, nor is it an official opinion of the EEOC.

Sincerely,

Dianna B. Johnston
Assistant Legal Counsel

This page was last modified on December 18, 2019.