Growing Immigrant Communities Face - povertylaw.orgpovertylaw.org/files/docs/article/chr_2002_july_august_hincapie.pdf · of the early to mid-1990s. ... or those perceived to be Arabs,

Less than a year ago, Americans werebecoming increasingly aware of immi-grants’ important contributions to theUnited States. The 2000 census indicatedthat during the last decade the foreign-born population had increased at ratesmatched only by the immigration wave atthe end of the nineteenth century.1

Reports revealed that the undocumentedpopulation also had grown, making moreurgent the need to legalize some of thosealready in the United States.2 Immigrantswere making significant headway inobtaining beneficial immigration reformwhen the tragic events of September 11abruptly altered the landscape for immi-grant workers and their advocates.

Recent concerns about security, mis-trust of immigrants, and suspicions re-garding the reliability of immigration doc-uments all evoke the antiimmigrantsentiments prevalent during the recessionof the early to mid-1990s. Not surpris-ingly this altered climate has affected theworkplace, where immigrants and citi-zens of differing ethnicities and nationalorigins, particularly those perceived to beMiddle Eastern or South Asian, increas-ingly are subject to discrimination.3 In theweeks following the attacks of September11, Americans’ outrage manifested inovert acts of hate crime, but more subtleforms of discrimination still linger.4

JULY–AUGUST 2002 | JOURNAL OF POVERTY LAW AND POLICY 249

Growing Immigrant Communities FaceIncreased Employment Discrimination

By Marielena Hincapié

Marielena Hincapié is a staff

attorney, National Immigration

Law Center, 1212 Broadway,

Suite 1400, Oakland, CA 94612;

510.663.8282 ext. 305;

[email protected].

1 See DIANNE SCHMIDLEY, U.S. CENSUS BUREAU, CURRENT POPULATION REPORTS, SPECIAL STUDIES

NO. P23-206, PROFILE OF THE FOREIGN-BORN POPULATION IN THE UNITED STATES: 2000, at 8(2001), www.census.gov/prod/2002pubs/p23-206.pdf (noting that, while the foreign-bornpopulation increased each decade throughout the 1800s, the census data indicated thatthe number of immigrants increased from 2.2 million in 1850 to 13.5 million in 1910).

2 See, e.g., B. Lindsay Lowell & Roberto Suro, How Many Undocumented: The NumbersBehind the U.S.-Mexico Migration Talks (2002), www.pewhispanic.org/site/docs/pdf/howmanyundocumented.pdf.

3 The American-Arab Anti-Discrimination Committee and the Council on American-IslamicRelations have confirmed an unprecedented increase in employment discriminationcases against Arab Americans, or those perceived to be Arabs, since September 11. SeeAMERICAN ARAB ANTI-DISCRIMINATION COMMITTEE (ADC), ADC FACT SHEET: THE CONDITION OF

ARAB AMERICANS POST-9/11 (Mar. 27, 2002), www.adc.org/terror_attack/9-11aftermath.PDF; Council on American-Islamic Relations, Total Number of Reported Incidents byCategory (last updated Feb. 8, 2002), www.cair-net.org/html/bycategory.htm; see alsoStephanie Armour, Reports of Workplace Bias on Rise Since Sept. 11, USA TODAY, May 10,2002, www.usatoday.com/money/general/2002/05/10/workplace-bias.htm.

4 See Stop Hate Crimes Now, HUM. RTS. NEWS (Human Rights Watch, New York, N.Y.), Sept.21, 2001, www.hrw.org/press/2001/09/usreprisal0921.htm.

In the current political climate, pro-tecting the rights of the most vulnerablemembers of our society by representingimmigrants in their employment problemsis more important than ever for legal aidand other legal advocates. In this article Idescribe the demographics of immigrantsin the United States and the most press-ing workplace issues that low-wage immi-grant workers face. I give an overview ofthe legal protections available againstimmigration-related and national-originemployment discrimination. I also explain,given the U.S. Supreme Court’s recentdecision in Hoffman Plastic CompoundsInc. v. NLRB, special considerations forundocumented workers alleging employ-ment discrimination.5

I. Demographics of Immigrants in the United States

The United States is home to almost 29million foreign-born individuals, of whom51 percent are from Latin America, 26 per-cent are from Asia, and 15 percent are fromEurope.6 Among the foreign-born, 30 per-cent are naturalized citizens, 30 percentare lawful permanent residents, 7 percentare refugees (2 percent of whom are nat-uralized citizens), 3 percent are nonimmi-

grants, and an estimated 28 percent areundocumented immigrants.7 Foreign-bornpersons account for approximately 12 per-cent of the entire population, comparedto 1890–1930, when almost 15 percent ofthe population was foreign-born.8

Immigrants make up more than 12percent of the entire work force: 17.4 mil-lion of the 140.5 million workers in theUnited States.9 More than 71 percent ofLatin Americans work as machine opera-tors, laborers, and factory workers; inservice industries, such as food and jani-torial services; and in agriculture.10 Approx-imately 81 percent of Asians are concen-trated in managerial or professionaloccupations; technical, sales, and admin-istrative support; and the service indus-try.11 While they participate in the workforce at rates similar to those of the native-born, about 17 percent of the foreign-bornlived below the poverty level in 1999, com-pared to 11 percent of the native-born.12

In 1999 the six states (California, NewYork, Florida, Texas, New Jersey, andIllinois) that traditionally receive the largestnumbers of immigrants were home to 70percent of the total immigrant popula-tion.13 However, the migration patterns inthe late 1990s show that immigrants, in

Immigrants and Employment Discrimination

250 CLEARINGHOUSE REVIEW | JULY–AUGUST 2002

5 Hoffman Plastic Compounds Inc. v. NLRB, 122 S. Ct. 1275 (2002) (Clearinghouse No.54,508).

6 See SCHMIDLEY, supra note 1, § 2 & fig.2-2.7 See The U.S. Population and Immigration: Hearing Before the Subcomm. on Immigration

and Claims of the House Comm. on the Judiciary, 107th Cong. (2001) (testimony ofJeffrey S. Passel & Michael E. Fix, Urban Institute) (“U.S. Immigration at the Beginning ofthe 21st Century”), www.urban.org/TESTIMON/passel_fix_08-02-01.html [hereinafterPassel & Fix testimony] (fig.4). About one-half of the estimated 8.5 million undocument-ed immigrants are Mexicans, and one-quarter are from other parts of Latin America; one-third or more are individuals who overstay their visas. See id. (“Undocumented Aliens”).Nonimmigrants are persons who stay in the United States for specific, temporary periodsand for specific purposes; e.g., nonimmigrants include students and faculty (those on Fand J visas) and temporary workers (such as those on H-1 and H-2 visas). See id. (“LegalStatus of the Immigrant Population”).

8 See SCHMIDLEY, supra note 1, at 8–9 & fig.1-1; see also Passel & Fix testimony, supra note7 (“Immigration Trends” & fig.2) (noting that while the number of immigrants is at anall-time high, the percentage of the total population is lower than it was a century ago).

9 See SCHMIDLEY, supra note 1, at 38.10 See id.; see also Alice Gates & Lynn-Marie Crider, Immigrant Participation in the Oregon

Workforce: A Qualitative Study of the Work Experience of Latino Immigrants in the PortlandMetropolitan Area 5 (2001), www.morsechair.uoregon.edu/AFLCIO_report.pdf (finding that33 percent of study participants worked in agriculture and forestry, 16 percent in services,21 percent in manufacturing, 12 percent in construction, and 18 percent in trade).

11 See SCHMIDLEY, supra note 1, at 38–41.12 See id. at 46–47.13 See id. at 14. States are listed in descending order, starting with the state with the largest

foreign-born population.

pursuit of better-paying jobs and lowercosts of living, are settling in other states.14

The nineteen “new growth” states, wherethe immigrant population grew faster thanthe traditionally top six states over the lastdecade, are Arizona, Maryland, Virginia,North Carolina, Georgia, Nevada, Oregon,Colorado, Kansas, Oklahoma, Utah, SouthCarolina, Iowa, Kentucky, Idaho, Alabama,Arkansas, Nebraska, and Mississippi.15

Among the challenges presented by thistrend is the lack of support systems toaddress the needs of the new immigrants.In many of these new communities, legalaid programs, social service providers, andlocal churches may be the only resourcesavailable to new immigrants.

II. Workplace Issues That Low-WageImmigrant Workers Face

Many immigrant workers toil in low-wagejobs in industries that have pervasive prob-lems with labor violations, such as non-payment of wages, dangerous working

conditions, and discrimination based oncitizenship status and national origin,including wage differentials based on vary-ing statuses.16 The increasing use of thecontingent work force, especially the

increase during the last decade in the sub-contracting of entry-level positions, such asthose in poultry processing and janitorialand hotel services, has contributed to theexploitation of immigrant workers.17

While anecdotal evidence suggeststhat employment discrimination againstimmigrants is prevalent, extensive studieson its degree and impact have yet to beconducted.18 Immigrants have filed few



14 See JEFFREY S. PASSEL & WENDY ZIMMERMAN, URBAN INST., ARE IMMIGRANTS LEAVING CALIFORNIA?SETTLEMENT PATTERNS OF IMMIGRANTS IN THE LATE 1990S 6–7, 13 (2001), www.urban.org/immig/are_immigrants_leaving_ca.html.

15 Id. at 7. States are listed in descending order, from the state with the largest foreign-bornpopulation in 1999 to that with the smallest.

16 See GENERAL ACCOUNTING OFFICE (GAO), PUB. NO. GAO/HEHS-95-29, GARMENT INDUSTRY:EFFORTS TO ADDRESS THE PREVALENCE AND CONDITIONS OF SWEATSHOPS (1994); L.M. Sixel,Hispanics Suffer More Deaths on Job—Efforts Aimed at Reversing Trend, HOUS. CHRON.,Mar. 26, 2002, at 1 (Business Section); CHIRAG MEHTA ET AL., CTR. FOR URBAN ECON. DEV.,UNIV. OF ILL. AT CHI., CHICAGO’S UNDOCUMENTED IMMIGRANTS: AN ANALYSIS OF WAGES, WORKING

CONDITIONS, AND ECONOMIC CONTRIBUTIONS 19, 21 (2002), available at http://homeless.cued.uic.edu/cued/projpub/publications/undoc_full.pdf (finding that undocumentedimmigrants in Chicago earn approximately $2.00 per hour less than documented immi-grants and that after controlling for factors such as length of experience in the U.S. labormarket, educational level, union membership, English proficiency, and occupation, thewage differential is greatest for undocumented Latin Americans, particularly LatinAmerican women, compared to undocumented immigrants from Eastern Europe, as wellas documented Eastern Europeans, Asians, and other immigrant groups).

17 See CATHERINE RUCKELSHAUS & BRUCE GOLDSTEIN, NAT’L EMPLOYMENT LAW PROJECT &FARMWORKER JUSTICE FUND, FROM ORCHARDS TO THE INTERNET: CONFRONTING CONTINGENT

WORK ABUSE 2 (2002), available at www.nelp.org/pub120.pdf.18 See Gates & Crider, supra note 10, at 12 (noting that “interviewees were extremely con-

scious of being treated as an underclass of workers” and quoting one of the intervie-wees who stated, “I would put up with [the working conditions] . . . I know that we areof another race, and that we are not as valued [as American workers],” while other inter-viewees explicitly mentioned “the racism and discrimination they face for being Mexicanor Central American, for not speaking English, or for not having a work permit”);MICHAEL FIX & MARGERY AUSTIN TURNER, URBAN INST., A NATIONAL REPORT CARD ON

DISCRIMINATION IN AMERICA: THE ROLE OF TESTING 10 (1998), www.urban.org/civil/report_card.html (noting that studies conducted to date on the prevalence of employ-ment discrimination against an increasingly diverse ethnic work force have focused onLatinos and not immigrants per se).

The heightened “security” backdrop, coupledwith antiimmigrant attitudes, presents new challenges in the area of employment discrimination.

claims with the relevant government agen-cies.19 Statistics published by the EqualEmployment Opportunity Commission(EEOC)—the federal agency responsiblefor enforcing Title VII of the Civil RightsAct of 1964 (Title VII)—show that from1992 to 2001 national-origin charges madeup only about 10 percent of all the dis-crimination claims it received.20

Most recently, however, the post–September 11 antiimmigrant backlash hasmanifested in both blatant and subtleforms of national-origin and religious dis-crimination against individuals who areor are perceived to be Middle Eastern or

Muslim.21 Also, the recent enactment ofthe Aviation and Transportation SecurityAct, which for the first time required thatairport security screeners be U.S. citizens,displaced hundreds of long-term lawfulpermanent residents from jobs that theyhad held for years.22 The heightened“security” backdrop, coupled with anti-immigrant attitudes, presents new chal-lenges in the area of employment dis-crimination.

The U.S. Supreme Court’s decision inHoffman has eroded further the rights ofundocumented workers.23 This case hassent chilling waves throughout the immi-grant community and worker advocates.In Hoffman the Court held that theNational Labor Relations Board did nothave the authority to award back payunder the National Labor Relations Act toan undocumented worker who had usedfalse documents to obtain his job althoughhis employer had wrongfully terminatedhim for helping organize a union.24 Whilethe Court specifically limited Hoffman toback pay under the Act, the case’s impacton remedies available under other em-ployment or labor laws to undocument-ed workers who have been wrongfullyterminated or who have suffered dis-



19 Many immigrants, particularly those who are undocumented, are reluctant to seek assis-tance from a governmental agency. Moreover, the state and federal agencies responsiblefor enforcing the nation’s employment and labor statutes are so understaffed and lack somany resources that their backlogs serve as a disincentive for workers to file claims. See,e.g., Press Release, U.S. Equal Employment Opportunity Commission (EEOC), EEOCIssues Fiscal 2001 Enforcement Data (Feb. 22, 2002), www.eeoc.gov/press/2-22-02.html(on file with Marielena Hincapié) (stating that, of 80,840 charges filed in 2001, the back-log of charges that the agency processed was 32,481—the lowest in 20 years).

20 See EEOC, Charge Statistics FY 1992 through FY 2001 (last modified Feb. 22, 2002),www.eeoc.gov/stats/charges.html. Title VII prohibits employment discrimination basedon race, color, national origin, gender, or religion. Title VII, Civil Rights Act of 1964, 42U.S.C. §§ 2000e et seq. (2002).

21 Between September 11, 2001, and May 7, 2002, the EEOC received 488 race or national-origin charges and an additional 497 religion charges. See Press Release, EEOC, EEOCProvides Answers About Workplace Rights of Muslims, Arabs, South Asians, and Sikhs(May 15, 2002), www.eeoc.gov/press/5-15-02.html (on file with Marielena Hincapié).

22 Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2002) (sectionregarding new U.S. citizenship requirement to be codified at 49 U.S.C. § 44935). Estimatesof the displacement of lawful permanent residents are from the Service EmployeesInternational Union, which represents airport screeners at three major airports (LosAngeles International Airport, San Francisco International Airport, and Chicago O’HareInternational Airport). E-mail from Solange Bitol, senior legislative advocate, ServiceEmployees International Union, to Marielena Hincapié, staff attorney, NationalImmigration Law Center (NILC) (Apr. 11, 2002, 18:21 EST) (on file with MarielenaHincapié).

23 Hoffman, 122 S. Ct. 1275.24 Id. at 1279, 1284–85.

JIM

WE

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crimination is a cause for concern.25 Withthe Hoffman decision and the currentpolitical climate, advocates can expectincreased citizenship and national-origindiscrimination and increases in documentabuse and other forms of worker exploita-tion—cases in which the intervention oflegal aid programs is crucial.

III. Legal Protections In this section I give a brief overview ofthe protections against the most commonforms of employment discrimination com-mitted against the low-wage immigrants:immigration-related discrimination, in theforms of citizenship-status discriminationand document abuse (both prohibited bythe Immigration and Nationality Act), andnational-origin discrimination (prohibitedby Title VII and the Immigration andNationality Act).26

A. Immigration-Related EmploymentDiscriminationPerhaps the most rampant forms of

discrimination affecting low-wage immi-grant workers in recent years have relat-ed to citizenship or immigration status.Discrimination also has stemmed from therequirement that job applicants presentdocuments to prove employment autho-rization (“document abuse”). These arerelatively new causes of action thatCongress created as part of the Immigra-tion Reform and Control Act of 1986,which amended the Immigration andNationality Act.27

1. Citizenship Discrimination

To curtail unlawful immigration,Congress, in enacting the ImmigrationReform and Control Act, made it unlaw-ful for employers knowingly to hire un-



25 Within weeks of the U.S. Supreme Court’s decision in Hoffman, defense attorneys tookadvantage of the decision to assert defenses in a range of non–National Labor RelationsAct cases, but the resulting decisions thus far have adopted a limited interpretation ofHoffman. See, e.g., Rivera v. Nibco, No. CV-F-99-6443 AWI/SMS (E.D. Cal. May 2, 2002)(Clearinghouse No. 52,644) (certifying to the Ninth Circuit an order for defendant’s inter-locutory appeal regarding whether Hoffman allows a defendant to inquire into a plain-tiff’s immigration status in a Title VII language-discrimination case where the court grant-ed pre-Hoffman an underlying protective order prohibiting such questions). Valadez v.El Aguila Taco Shop, No. GIC 781170 (Cal. Super. Ct. Apr. 18, 2002) (holding thatHoffman does not limit the right of undocumented workers seeking unpaid minimumwages and overtime under the California Labor Code); Flores v. Albertsons Inc., No. CV01-00515 AHM (SHx), 2002 U.S. Dist. LEXIS 6171 (C.D. Cal. Apr. 9, 2002) (ClearinghouseNo. 54,845) (finding that Hoffman did not affect the right of undocumented workers tobe paid for work actually performed, and therefore plaintiffs’ immigration status wasirrelevant in class action of janitors claiming unpaid wages under the Fair LaborStandards Act); Local 66L, Union of Needletrades, Indus. & Textile Employees v.AmeriPride Linen & Apparel Servs., FMCS Case No. 021120-01435-3 (2002) (Shrage, Arb.)(finding that a reinstatement award with back pay did not conflict with Hoffman whereemployer had violated “just cause” provision of union contract when it terminated twoSalvadoran workers who voluntarily came forward to supply new and valid documentsafter having used false documents to obtain job because workers were now authorized).

26 Immigration and Nationality Act, 8 U.S.C. § 1324b(a)(1)(B) (2001) (prohibiting discrimi-nation based on citizenship status); id. 1324b(a)(6) (prohibiting document abuse); id.§ 1324b(a)(1)(A) (prohibiting national-origin discrimination); Title VII, Civil Rights Act of1964, 42 U.S.C. § 2000e-2(a)(1) (2002) (prohibiting national-origin discrimination).Although Title VII does not expressly prohibit citizenship discrimination, the regulationstates that “where citizenship requirements have the purpose or effect of discriminatingagainst an individual on the basis of national origin, they are prohibited.” 29 C.F.R.§ 1606.5 (2001); see also Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) (ClearinghouseNo. 12,262) (finding that national origin does not refer to the person’s citizenship statusbut instead to the country where a person or a person’s ancestors were born).

27 Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (1986)(amending Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. (2001)). While citi-zenship discrimination and document abuse are serious problems, the statute provideslittle protection to those who need it most—undocumented workers.

documented workers and created sanc-tions for employers who do so.28 Toenforce this prohibition, Congress creat-ed the I-9 employment eligibility verifi-cation form.29 Employers must completethe I-9 form for new workers hired afterNovember 6, 1986.30 Because of the dis-crimination against “foreign-looking or -sounding” U.S. citizens or authorizedworkers that could result from employ-ers’ fears of sanctions, Congress includedantidiscrimination provisions prohibitingcitizenship-status discrimination and, com-plementing Title VII, prohibiting national-origin discrimination by small employers,that is, those with four to fourteen em-ployees.31 To enforce the Immigrationand Nationality Act’s antidiscriminationprovisions, Congress created the Officeof Special Counsel for Immigration-Re-lated Unfair Employment Practices.32

The Immigration and Nationality Actprohibits employers with at least fouremployees from discriminating against anapplicant or employee based on that per-son’s citizenship or immigration status.33

A present-day example is an employerwho, concerned about terrorism, decidesto hire only U.S. citizens. Another exam-ple is an employer who hires only lawfulpermanent residents or who fires a work-er for lacking U.S. citizenship. Both of

those employers would be committing cit-izenship discrimination in violation of theAct. However, an employer may prefer aU.S. citizen to an equally qualified nonci-tizen.34 The Immigration and NationalityAct prohibits citizenship discrimination inthe hiring, recruiting, and firing stages butnot in the terms and conditions of a job,such as promotions, raises, or benefits.35

To file a citizenship-discriminationclaim, a person must be a “protected indi-vidual,” defined to include only U.S.-bornand naturalized citizens, U.S. nationals,lawful permanent residents who file fornaturalization within six months of beingeligible, lawful temporary residents,refugees, and asylees.36 This narrow def-inition of “protected individual” excludestwo large segments of the immigrant pop-ulation: long-term permanent residentswho chose not to apply for naturalizationwithin that six-month window and the 8.5million undocumented workers living inthe United States.37 The remedies avail-able for citizenship discrimination includeequitable relief such as hiring, reinstate-ment, and back pay; injunctive relief; civilpenalties; and attorney fees.38

2. Document Abuse

Under the Immigration Act of 1990,Congress amended the Immigration and



28 8 U.S.C. § 1324a(a) (2001).29 Id. § 1324a(b).30 8 C.F.R. § 274a.7 (2001).31 8 U.S.C. § 1324b(a)(1)(B) (2001) (prohibiting citizenship status discrimination); id.

§ 1324b(a)(2)(A)–(B) (prohibiting national-origin discrimination by employers with fourto fourteen employees); see generally GAO, PUB. NO. GAO/GGD-88-14, IMMIGRATION

REFORM: STATUS OF IMPLEMENTING EMPLOYER SANCTIONS AFTER ONE YEAR (1987); GAO, PUB.NO. GAO/GGD-89-16, IMMIGRATION REFORM: STATUS OF IMPLEMENTING EMPLOYER SANCTIONS

AFTER SECOND YEAR (1988); GAO, PUB. NO. GAO/GGD-90-62, IMMIGRATION REFORM:EMPLOYER SANCTIONS AND THE QUESTION OF DISCRIMINATION (1990) (finding a “serious patternof discrimination” resulting specifically from employer sanctions but attributing the prob-lem primarily to employer confusion regarding the array of documents employees couldpresent to satisfy the I-9 employment verification requirements and a lack of awarenessof the new law among employers). For a discussion of national-origin employment dis-crimination, see section III.B.

32 8 U.S.C. § 1324b(c) (2001). For more information on the Office of Special Counsel forImmigration-Related Unfair Employment Practices, see www.usdoj.gov/crt/osc.

33 8 U.S.C. § 1324b(a) (2001).34 Id. § 1324b(a)(4).35 Id. § 1324b(a)(1).36 Id. § 1324b(a)(3).37 Passel & Fix testimony, supra note 7, fig.4.38 8 U.S.C. § 1324b(g)(2)(B) (2001). The remedies are the same for document abuse. See

id.

Nationality Act’s antidiscrimination provi-sions to include “document abuse” andretaliation.39 The Immigration and Nation-ality Act prohibits employers with at leastfour employees from engaging in docu-ment abuse.40 The document-abuse pro-vision proscribes employers from requir-ing that workers present more documentsthan are required by the I-9 employmenteligibility verification process and fromrequiring that workers present specificdocuments during this process.41 Forexample, document abuse occurs whenan employer requires a new employee topresent specific documents, such as a res-ident alien card or “green card,” to proveemployment authorization.

Another common form of documentabuse is unlawful reverification.42 TheImmigration and Nationality Act requiresemployers to reverify an employee’s con-tinuing employment authorization when,at the time of hire, that worker present-ed a document bearing an expirationdate.43 In such a situation, the employermust reverify continuing eligibility beforethe expiration date.44 Also, if the employ-er obtains information questioning itsworkers’ employment authorization (e.g.,an Immigration and Naturalization Serviceaudit indicates that certain workers havediscrepant documents), the employermust reverify their employment eligibili-ty.45 Immigration regulations do not



39 Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (codified at Immigrationand Nationality Act, 8 U.S.C. §§ 1101 et seq. (2001)) (adding § 274B(a)(5)–(6) of theImmigration and Nationality Act). The retaliation provision prohibits employers fromintimidating, threatening, coercing, or retaliating against an individual with the purposeof interfering with that person’s right to file a charge or a complaint, testify, assist, orparticipate in any manner in an investigation, proceeding, or hearing conducted undersection 274B of the Immigration and Nationality Act. 8 U.S.C. § 1324b(a)(5) (2001). TheImmigration Act of 1990 also created civil and criminal penalties for document fraud. Id.§ 1324c.

40 8 U.S.C. § 1324b(a)(6) (2001).41 Id.42 Document abuse normally arises in the hiring process, while reverification occurs when

a worker is asked to show documents establishing work authorization after the workerhas begun working.

43 8 C.F.R. § 274a.2(b)(1)(vii) (2001). 44 Id.45 IMMIGRATION AND NATURALIZATION SERVICE (INS), HANDBOOK FOR EMPLOYERS: INSTRUCTIONS FOR

COMPLETING FORM I-9 (EMPLOYMENT ELIGIBILITY VERIFICATION FORM) 13 (M-274) (rev. Nov. 21,1991). However, the required reverification in this situation is quite different from anemployer receiving from the Social Security Administration a letter stating that certainemployees’ names and social security numbers do not match its records (also known asa Social Security Administration “no-match” letter); employers who receive no-match let-ters are not required to reverify the employees’ employment eligibility. Because theseletters do not indicate workers’ immigration status and because many explanations arepossible for why there might be a mismatch, the position of the INS general counsel isthat a no-match letter by itself does not serve as constructive knowledge that a worker isunauthorized. Letter from Paul W. Virtue, general counsel, INS, to [redacted] (Apr. 12,1999) (on file with Marielena Hincapié). Despite the general counsel’s position, manyemployers do reverify the listed workers’ employment authorization; this reverificationcan amount to document abuse. For two cases finding that an SSA no-match letter doesnot provide “just cause” for an employer to terminate a worker because the letter, byitself, does not establish that the worker is undocumented, see Local 100, HotelEmployees & Rest. Employees Union v. Gila’s Jewel Inc., AAA Case No. 13-300-02261-01(2002) (Nadelbach, Arb.); Local 2, Hotel Employees & Rest. Employees Union v. SanFrancisco Cent. Travelodge Joint Venture, AAA Case No. 74-300-63-99 (2000) (Nelson,Arb.) (copies of both arbitration decisions are available from Marielena Hincapié). Formore information on the growing problem of SSA no-match letters affecting thousandsof workers across the country, see NILC, NILC Information Packet: Social SecurityAdministration “No-Match” Letters: A Do-It-Yourself Packet for Immigrant Workers’Advocates, in IMMIGRANT WORKERS’ RIGHTS TRAINING MANUAL (2002), www.nilc.org/immsemplymnt/Info_Memos/SSA_No-Match_Packet_Complete.pdf.

require reverification of a “continuingemployee,” such as a worker who returnsfrom an approved leave or one who isordered reinstated after a finding ofwrongful termination.46 During reverifi-cation, the employee has the choice ofwhich documents to present, and if theemployer refuses to accept a document

that is otherwise allowable, the employ-er is engaging in document abuse.47 Agrowing jurisprudence under the NationalLabor Relations Act questions the legali-ty of reverification when employers usethe process to suppress or retaliate

against labor organizing or other pro-tected activities.48

To file a document-abuse claim, anindividual must be a U.S. citizen or oth-erwise authorized to work; this includeslong-term lawful permanent residents.49

Although the Immigration and Natural-ization Act does not require that a personfiling a document-abuse claim be a “pro-tected individual” (as it does for citizen-ship discrimination claims), undocu-mented workers—who are the mostaffected by document abuse—still areexcluded from filing document-abuseclaims. There is some logic to this exclu-sion, given that the aim of the ImmigrationReform and Control Act was to reduceunlawful immigration and save jobs forU.S. citizens.50 However, the reality is thatemployer sanctions for knowingly hiringundocumented workers have been anineffective deterrent in achieving theseaims.51 Instead they have had the unin-tended consequence of forcing otherwiselaw-abiding individuals to engage in doc-



46 8 C.F.R. § 274a.2(b)(1)(viii)(A)(1–8) (2001). For more information on reverifying a work-er’s employment authorization, see NILC & Nat’l Employment Law Project, BasicInformation Brief: Reverification, in IMMIGRANT WORKERS’ RIGHTS TRAINING MANUAL, supranote 45, www.nilc.org/immsemplymnt/Info_Memos/basic_info_reverification.pdf.

47 See 8 U.S.C. § 1324b(a)(6) (2001).48 See, e.g., Nortech Waste, 336 N.L.R.B. No. 79 (2001) (finding that employer began reveri-

fication process after union election); Superior Truss & Panel Inc., 334 N.L.R.B. No. 115(2001) (finding that employer questioned the immigration status of workers listed on aSocial Security Administration no-match letter only after they had voted to unionize,despite employer having received such letters in the past and not acting on them); RegalRecycling, 329 N.L.R.B. No. 38 (1999) (finding that employer unlawfully reverified cer-tain workers’ employment authorization during organizing campaign); County WindowCleaning, 328 N.L.R.B. No. 26 (1999) (finding that employer with prior knowledge ofworker’s lack of work authorization violated the National Labor Relations Act when itrequired “valid” social security number only after worker expressed union support).

49 Based on statutory construction, the restriction of “protected individual” refers only tocitizenship discrimination claims (i.e., claims under 8 U.S.C. § 1324b(a)(1)(B) (2001)) butnot to document-abuse claims (i.e., claims under id. § 1324b(a)(6)). For a definition of“protected individual,” see supra note 36 and accompanying text.

50 See H.R. REP. NO. 99-682(I) (1986), reprinted in 1986 U.S.C.C.A.N. 5649–5651, 5656,5662; see also IMMIGRATION REFORM: STATUS OF IMPLEMENTING EMPLOYER SANCTIONS AFTER ONE

YEAR, supra note 31, at 8.51 See GAO, PUB. NO. GAO/GGD-99-33, ILLEGAL ALIENS: SIGNIFICANT OBSTACLES TO REDUCING

UNAUTHORIZED ALIEN EMPLOYMENT EXIST 21 (1999) (finding that less than 17 percent ofinvestigations triggered by tips to the INS led to sanctions); Jonathan Peterson, FailedEmployer Sanctions Are No Longer an Option as U.S., Mexico Look to New ImmigrationStrategies, L.A. TIMES, Aug. 6, 2001, at A1.

The majority of national-origin claims are filedunder Title VII because it protects all workersregardless of immigration status and providesbroader protections and remedies.

ument fraud.52 The remedies available fordocument abuse are the same as thosefor citizenship discrimination: equitablerelief such as hiring, reinstatement, andback pay; injunctive relief; civil penalties;and attorney fees.53

B. National-Origin EmploymentDiscriminationThe Immigration and Nationality Act

prohibits national-origin discrimination bysmall employers, those with four to four-teen employees, as well as by largeremployers excluded from Title VII.54

Employers with more than fifteen work-ers employed each working day for twen-ty or more calendar weeks are subject toTitle VII.55 Because both Title VII and theImmigration and Nationality Act protectworkers from national-origin discrimina-tion, the EEOC and Office of SpecialCounsel for Unfair Immigration-RelatedEmployment Practices have a memoran-dum of understanding to ensure that

national-origin and retaliation charges areefficiently processed.56 The majority ofnational-origin claims are filed under TitleVII because it protects all workers regard-less of immigration status and providesbroader protections and remedies.57 Ac-cordingly in this section I focus primarilyon Title VII.

National-origin discrimination isdefined as “the denial of equal employ-ment opportunity because of an individ-ual’s, or his or her ancestor’s, place of ori-gin; or because an individual has thephysical, cultural, or linguistic character-istics of a national origin group.”58 It alsoencompasses language discrimination,which usually takes the form of English-only rules or English-proficiency require-ments or stems from biases based on aperson’s accent.59 For example, afterSeptember 11, some employers institutedEnglish-only rules.60 Title VII prohibits,in addition to discrimination, harassmentbased on national origin—or on the basis



52 Criminal prosecution of document fraud since September 11 has increased as part of theairport raids being conducted under Operation Tarmac, the federal government’s initia-tive after September 11 to audit each airport around the country; the initiative resulted inthe detention of hundreds of airport workers. See The INS and the Office of SpecialCounsel for Immigration-Related Unfair Employment Practices: Hearing Before theImmigration Subcomm. of the House Comm. on Judiciary, 107th Cong. (2002) (statementof Joseph Greene, acting deputy executive associate commissioner for field operations,INS), www.ins.usdoj.gov/graphics/aboutins/congress/testimonies/2002/ 2GREENEH.pdf;see also Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) (Clearinghouse No. 53,799) (find-ing that the forms and procedures that the INS used to initiate civil document fraud pro-ceedings violated due process); INS Completes Vacating Document Fraud Orders UnderSettlement in Walters v. Reno; Two-Year Filing Period for Motions to Reopen Begins, 15IMMIGRANTS’ RIGHTS UPDATE (NILC, Oakland, Cal.), Aug. 31, 2001, at www.nilc.org/imm-semplymnt/inswkplce/wkplcenfrc015.htm.

53 8 U.S.C. § 1324b(g)(2)(B) (2001).54 Id. § 1324b(a)(2)(A)–(B).55 42 U.S.C. § 2000e(b) (2002). This definition excludes certain employers, such as some

seasonal and agricultural employers.56 See EEOC, Memorandum of Understanding Between the Equal Employment Opportunity

Commission and the Office of Special Counsel for Immigration Related UnfairEmployment Practices (July 6, 2002), available at www.eeoc.gov/docs/oscmou.html(original version of memorandum was dated Dec. 18, 1997).

57 See cases cited infra note 82; see also Press Release, EEOC, EEOC Reaffirms Commitmentto Protecting Undocumented Workers from Discrimination (June 28, 2002),www.eeoc.gov/press/6-28-02.html (on file with Marielena Hincapié). Regarding Title VIIproviding broader protections, see NILC, WORKERS’ RIGHTS CURRICULUM—RESOURCE MANUAL

2–24 (2d ed. 1996).58 29 C.F.R. § 1606.1 (2001).59 See EEOC, 2 SPEAK-ENGLISH-ONLY RULES AND OTHER LANGUAGE POLICIES: EEOC COMPLIANCE

MANUAL § 623 (1998).60 See Mary A. Ferrer & Yolanda M. Sanders, Life in the Workplace After 9/11:

Recommendations for Employers, LAB. & EMP. BULL., Jan. 1, 2002, at 21.

of any other protected characteristic—which results “in a tangible employmentaction or is sufficiently severe or pervasiveto alter the conditions of employment.”61

National-origin discrimination claimsare analyzed under two different theories:disparate treatment or adverse impact.Disparate treatment occurs when anemployer treats an individual who is amember of a protected group less favor-ably than other “similarly situated indi-viduals” because of that person’s nationalorigin.62 To prove disparate treatment, theworker must establish that the employer’sactions were based on a discriminatorymotive, although this does not require ashowing of intentional discrimination.63

The worker can establish discriminatorymotive through direct or circumstantialevidence.64 Adverse impact is consideredto take place when an employer enacts aneutral policy that has a disproportionateimpact on a certain national-origin group.A charging party does not need to estab-lish a discriminatory motive under theadverse impact theory.65

To establish a disparate treatmentclaim involving indirect or circumstantialevidence, the worker must meet theMcDonnell Douglas test.66 For example, ina refusal-to-hire situation, the worker mustfirst establish that the worker is a memberof a protected class (e.g., a Pakistani), wasqualified for the position, was subjected

to an adverse employment action in thatthe employer did not hire the worker, andthe position remained open and was ulti-mately filled by an Anglo worker.67 Afterthe worker establishes a prima facie case,which raises a presumption that theemployer discriminated against the work-er, the burden then shifts to the employerto give a legitimate, nondiscriminatoryexplanation for its actions.68 Once theemployer does so, the burden shifts backto the worker, who must prove that theemployer’s explanation was a pretext andthat the employer’s actions in fact weremotivated by discriminatory intent.69 If aworker has direct evidence of the dis-crimination, the worker’s claim does nothave to pass the McDonnell Douglas test.70

Under the adverse impact theory,after a worker establishes the dispropor-tionate impact of a neutral policy, theemployer must show that its policy is jus-tified by a business necessity.71 Thisrequires a showing that the policy is nec-essary for “safe and efficient job perfor-mance or the safe and efficient operationof the business.”72 The employer alsomust show that the policy effectively car-ries out the business purpose it is allegedto serve.73 However, if alternative poli-cies also would accomplish the businessnecessity with a less adverse impact, thenthe neutral policy does not survive theadverse impact analysis.74



61 29 C.F.R. § 1606.8 (2001).62 See EEOC, NOTICE NO. 915.002, 2 POLICY GUIDANCE ON RECENT DEVELOPMENTS IN DISPARATE

TREATMENT THEORY: EEOC COMPLIANCE MANUAL § 604 (1992) (section II.A, “EstablishingLiability Through Circumstantial Evidence”).

63 Id.64 Id. (section III, “Proving Disparate Treatment Through Direct Evidence”).65 2 SPEAK-ENGLISH-ONLY RULES AND OTHER LANGUAGE POLICIES, supra note 59, § 623.6.66 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (Clearinghouse No. 8,049).67 Id. at 802.68 Id. at 802–3.69 See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–8 (1993).70 See 2 POLICY GUIDANCE ON RECENT DEVELOPMENTS IN DISPARATE TREATMENT THEORY, supra

note 62, § 604.71 See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (Clearinghouse No. 4,458)

(holding that the touchstone for deciding whether an employment practice is discrimina-tory is whether it is justified by a business necessity); see also 2 SPEAK-ENGLISH-ONLY RULES

AND OTHER LANGUAGE POLICIES, supra note 59, § 623.6.72 Dothard v. Rawlinson, 433 U.S. 321, 331 n.14 (1977) (Clearinghouse No. 21,683).73 2 SPEAK-ENGLISH-ONLY RULES AND OTHER LANGUAGE POLICIES, supra note 59, § 623.6.74 See id.

After a worker establishes national-origin discrimination, the remedies in-clude injunctive relief, back pay, com-pensatory and punitive damages, andattorney fees and costs.75 However, in“mixed-motive” cases, in which an em-ployer shows that it would have takenthe same action (e.g., firing) based onanother, nondiscriminatory reason, thecharging party is not entitled to damagesor an injunctive order requiring theemployer to reinstate, hire, or promotethe individual.76 For a case to be consid-ered one of “mixed motives,” the legiti-mate and discriminatory motives musthave been operating when the employertook the action.77 If an employer fires aworker based on a discriminatory motivebut later discovers information on thebasis of which it could have terminatedthe worker legitimately, then the legiti-mate reason is not a motive for theaction.78 This would be considered an“after-acquired” evidence case.79 In sucha case the individual’s claims are not

barred, but the court may not order theemployer to reinstate the worker.80 Theworker still would be eligible for backpay and damages up until the date theemployer acquired the new evidence.81

IV. Special Considerations forUndocumented Workers AllegingEmployment Discrimination

Notwithstanding the Immigration Reformand Control Act’s enactment making itunlawful for employers knowingly to hireundocumented workers, courts consistentlyheld that Title VII protected all employeesregardless of immigration status.82 Similarlycourts upheld the rights of unauthorizedworkers under other statutes.83 For exam-ple, in Sure-Tan v. NLRB, the U.S. SupremeCourt held that the National LaborRelations Act protected undocumentedworkers who had been unlawfully report-ed to the Immigration and NaturalizationService in retaliation for their union activ-ity.84 In Hoffman the Supreme Court didnot disturb the National Labor Relations



75 42 U.S.C. § 2000e-5(g)(2)(B)(i-ii) (2001).76 Id. § 2000e-5(g)(1).77 See 2 POLICY GUIDANCE ON RECENT DEVELOPMENTS IN DISPARATE TREATMENT THEORY, supra

note 62, § 604 (section III.B.2, “‘Mixed Motives’ Cases”).78 Id. 79 Id.; see McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995) (Clearinghouse

No. 50,578) (establishing the after-acquired evidence doctrine).80 See 2 POLICY GUIDANCE ON RECENT DEVELOPMENTS IN DISPARATE TREATMENT THEORY, supra

note 62, § 604 (section III.C.3, “Cases Where Evidence of a Legitimate Basis IsDiscovered After-the-Fact”).

81 Id.82 For two cases extending Title VII protections to undocumented workers before the

Immigration Reform and Control Act of 1986, see EEOC v. Hacienda Hotel, 881 F.2d1504 (9th Cir. 1989); Rios v. Enter. Ass’n Steamfitters Local Union 638, 860 F.2d 1168 (2dCir. 1988) (Clearinghouse No. 4,307). For two cases extending Title VII protections toundocumented workers after the Immigration Reform and Control Act of 1986, seeEEOC v. Switching Sys. Div. of Rockwell Int’l Corp., 783 F. Supp. 369 (N.D. Ill. 1992)(Clearinghouse No. 44,747); EEOC v. Tortilleria “La Mejor,” 758 F. Supp. 585 (E.D. Cal.1991). But see Egbuna v. Time Life Libraries, 153 F.3d 184 (4th Cir. 1998) (holding thatunauthorized individual has no cause of action under Title VII for refusal to hire).

83 See, e.g., Sure-Tan v. NLRB, 467 U.S. 883 (1984) (pre–Immigration Reform and ControlAct of 1986) (holding that undocumented workers were covered under the NationalLabor Relations Act); NLRB v. A.P.R.A. Fuel Oil Buyers Group, 134 F.3d 50 (2d Cir. 1997)(finding that undocumented workers were covered under the National Labor RelationsAct); Patel v. Quality Inn S., 846 F.2d 700 (11th Cir. 1988) (holding that undocumentedworkers were covered for unpaid wages under the Fair Labor Standards Act); Contrerasv. Corinthian Vigor Ins. Brokerage, 25 F. Supp. 2d 1053 (N.D. Cal. 1998) (holding that anundocumented worker who was reported to the INS also was protected by the FairLabor Standards Act’s antiretaliation provision).

84 Sure-Tan, 467 U.S. at 903.

Act’s coverage of undocumented workers.While the Court did not expressly affirmthat portion of Sure-Tan’s holding, one caninfer that coverage survives Hoffman fromthe Court’s statement that the NationalLabor Relations Board’s “[l]ack of authori-ty to award backpay does not mean thatthe employer gets off scot-free” given the

availability of other sanctions, such as ceaseand desist orders and requirements thatemployers post a notice at the workplaceregarding employees’ rights.85

Although employers will argue—asthey have already begun to—that Hoff-man strips undocumented workers of cov-erage, the National Labor Relations Act,Title VII, and other statutes continue tocover undocumented workers as “employ-ees” despite Hoffman.86 The question re-maining is how Hoffman affects back payand other remedies that would compen-sate a worker for a period when the work-er did not work. Now that the EEOC hasrescinded, in light of Hoffman, its guid-

ance regarding remedies available toundocumented workers, advocates con-tinue to be concerned about how theEEOC will interpret Hoffman’s impact ona case-by-case basis.87

Recalling that Hoffman was an after-acquired evidence case is importantbecause it helps determine which reme-dies a court may limit. The underlyingfacts involve an employer who terminat-ed, in violation of the National LaborRelations Act, José Castro and his cowork-ers “in order to rid itself of known unionsupporters.”88 After the National LaborRelations Board ordered Castro reinstatedwith back pay, an administrative lawjudge held a compliance hearing to cal-culate the amount of back pay that theemployer owed him. During this pro-ceeding, in response to a question byopposing counsel, Castro admitted tobeing unauthorized and to having usedfalse documents to obtain his job.89 Inaccordance with the after-acquired evi-dence doctrine articulated in McKennon,the board properly calculated Castro’sremedies by tolling the back pay up tothe date of the employer’s “discovery” thathe used false documents.90 However, theSupreme Court instead focused onCastro’s “serious illegal conduct” anddenied Castro the right to back pay.91

Thus determining whether the plaintiff isknown to be undocumented and whetherthe remedies being sought are for preter-mination or posttermination discrimina-tion is important.



85 Hoffman, 122 S. Ct. at 1285.86 For post-Hoffman cases in which employers argue that Hoffman strips undocumented

workers of coverage, see supra note 25.87 See EEOC, Notice No. 915.002, Enforcement Guidance on Remedies Available to

Undocumented Workers Under Federal Employment Discrimination Laws (Oct. 26,1999), www.eeoc.gov/docs/undoc.html (rescinded); EEOC, Notice No. 915.002,Rescission of Enforcement Guidance on Remedies Available to Undocumented WorkersUnder Federal Employment Discrimination Laws (June 27, 2002), www.eeoc.gov/docs/undoc-rescind.html.

88 Hoffman, 122 S. Ct. at 1278.89 Id. at 1279.90 McKennon, 513 U.S. at 361–62.91 Hoffman, 122 S. Ct. at 1278–79 (discussing the employment eligibility verification

scheme Congress created in the Immigration Reform and Control Act of 1986).

Although employers will argue that HoffmanPlastic Compounds v. NLRB strips undocumented workers of coverage, the National Labor Relations Act, Title VII, andother statutes continue to cover undocumentedworkers as “employees” despite Hoffman.

A. Remedies Available forUndocumented WorkersThe traditional remedies available

under Title VII include injunctive relief;equitable relief, such as reinstatement orinstatement, back pay, and front pay; andcompensatory or punitive damages.92 Toprevent future discrimination, the EEOCcan order injunctive relief, such as ceaseand desist orders, posting requirements,the purging of personnel records, andchanges in hiring procedures.93 Theseremedies survive Hoffman in that they donot act as an incentive for the worker toengage in further violations of immigra-tion law and do not conflict with theImmigration Reform and Control Act.94

The back-pay remedy, which was atissue in Hoffman, is monetary relief tocompensate workers for wages theywould have earned had their employersnot wrongfully terminated them. UnderTitle VII and other employment and laborstatutes, the amount of back pay award-ed is reduced by any wages that the work-er earned in the period between the ter-mination and the finding of employerliability.95 This requirement to mitigate iscritical to calculating the amount of backpay to which a worker is entitled, as theCourt noted in Hoffman that “Castro can-not mitigate damages, a duty our cases

require . . . without triggering new IRCA[Immigration Reform and Control Act] vio-lations, either by tendering false docu-ments to employers or by finding employ-ers willing to ignore IRCA and hire illegalworkers.”96 However, distinguishing back-pay cases under Title VII from thoseunder the National Labor Relations Act isdifficult given that courts have relied onthe Act to interpret back pay under TitleVII.97 Nevertheless, advocates should dis-tinguish back pay and other remediesunder Title VII as serving the dual pur-pose of compensating the worker as wellas deterring the defendant and otheremployers from engaging in discrimina-tory behavior, from back pay under theAct, which the Hoffman court noted wasto serve as a “make whole” remedy andnot as a punitive or deterrent remedy.98

However, when the claim involvesdiscrimination in the terms and conditionsof the job, back pay still should be award-ed for that portion of the damages thatcan be considered compensation for“work performed,” which is more analo-gous to unpaid wages pursuant to the FairLabor Standards Act.99 In terms of rein-statement, even before Hoffman, where aworker was known or was discovered tobe unauthorized, the courts and enforce-ment agencies recognized that an order of



92 42 U.S.C. § 2000e-5(g)(1) (2002).93 See EEOC, 2 INTAKE OF CHARGES AND COMPLAINTS—PRE-CHARGE COUNSELING: EEOC

COMPLIANCE MANUAL § 2.4 (1996).94 See Hoffman, 122 S. Ct. at 1283.95 Regarding reduction of back-pay awards under Title VII, see McKennon, 513 U.S. at 362;

see also EEOC, 2 EEOC ENFORCEMENT GUIDANCE ON AFTER-ACQUIRED EVIDENCE: EEOCCOMPLIANCE MANUAL § 604 (1998) (section III.C.1, “Backpay, Frontpay, andReinstatement”).

96 Hoffman, 122 S. Ct. at 1283, 1284 (noting that “[w]hat matters here . . . is that Congresshas expressly made it criminally punishable for an alien to obtain employment withfalse documents. There is no reason to think that Congress nonetheless intended to per-mit backpay where but for an employer’s unfair labor practices, an alien-employeewould have remained in the United States illegally, and continued to work illegally, allthe while successfully evading apprehension by immigration authorities.”).

97 See, e.g., Lorance v. AT&T Technologies, 490 U.S. 900, 909 (1989); see also EnforcementGuidance on Remedies Available to Undocumented Workers Under FederalEmployment Discrimination Laws, supra note 87, at 8 n.3.

98 See, e.g., Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1360 (9th Cir. 1985) (“Title VII wasdesigned to deter and remedy discrimination on the basis of group characteristics”);Perez v. Globe Airport Sec. Servs., 253 F.3d 1280, 1288 (11th Cir. 2001) (observing thatCongress intended Title VII to both remedy and deter discrimination); see Hoffman, 122S. Ct. at 1285 n.6.

99 See Fair Labor Standards Act of 1938, 29 U.S.C. §§ 206–7 (2001).

reinstatement would conflict with theImmigration Reform and Control Act sincethey had no authority to order an employ-er to violate the Immigration and Nation-ality Act.100

On the other hand, compensatoryand punitive damages should surviveHoffman because Congress created thesedamages under the Civil Rights Act of1991 specifically to “strengthen and im-prove Federal civil rights laws . . . basedon a Congressional finding that addition-al remedies are needed to deter unlawfulharassment and intentional discriminationin the workplace.”101 Compensatory dam-ages redress the emotional harm sufferedby the worker as a result of the discrimi-natory conduct. Therefore courts shouldaward such damages regardless of theworker’s immigration status because theharm resulted from the employer’s ac-tions. Likewise, punitive damages shouldsurvive Hoffman because courts awardsuch damages specifically to punish em-ployers for unlawful discrimination andas a deterrent to future violations.

B. Where the Worker’s UnauthorizedStatus Is Not KnownBefore Hoffman, the EEOC regarded

all victims of discrimination as presump-tively entitled to reinstatement and thusrequired workers to be ordered reinstat-ed unless the employer knew that theworker was unauthorized.102 In situationsin which the employer did not have evi-dence of a worker’s lack of employment

authorization, the EEOC’s guidance (nowrescinded) recommended that reinstate-ment be ordered because it “is notcharged with the enforcement of IRCAand should not participate in ‘the processof determining an employee’s immigra-tion status.’”103 Despite the EEOC rescind-ing its guidance, courts still should orderreinstatement in cases in which neitherthe defendant nor the plaintiff introducedevidence or raised issues regarding theplaintiff’s immigration status.

If an employer does not know thatthe charging party is unauthorized, plain-tiff’s counsel should keep that informa-tion out of the charge process as well asthe litigation. Educating the client aboutthe importance of not revealing suchinformation and the ramifications of dis-closing it is essential. Counsel should beprepared to seek a protective order tolimit opposing counsel’s ability to inquireinto plaintiff’s immigration status andshould consider whether a separate retal-iation claim, an injunction, a motion inlimine, or other litigation strategies areappropriate.104

C. Where the Employer KnowinglyHired the Unauthorized WorkerAdvocates should argue that Hoff-

man is inapplicable in cases in which theemployer “knowingly” hired the unau-thorized worker and that remedies be tai-lored according to principles outlined inthe A.P.R.A. case and adopted by theEEOC in its pre-Hoffman guidance.105 In



100 See, e.g., A.P.R.A., 134 F.3d at 57.101Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified at 42 U.S.C.

§§ 2000e et seq. (2002)). These additional remedies are authorized only in cases of inten-tional discrimination and therefore are not available for adverse impact claims.

102Enforcement Guidance on Remedies Available to Undocumented Workers UnderFederal Employment Discrimination Laws, supra note 87 (section III.B.2. “Instatement orReinstatement”).

103 Id.104While protective orders may be more challenging to obtain post-Hoffman, seeking such

an order as a preemptive measure is even more important now. Immigrant workeradvocates have succeeded in obtaining such protective orders based on the highly prej-udicial impact of workers having to disclose information about their immigration status,as well as the chilling effect such a disclosure has on the workers and other potentialplaintiffs. See, e.g., Rivera, 204 F.R.D. 647 (E.D. Cal. June 18, 2001) (granting protectiveorder in Title VII national-origin claim).

105 A.P.R.A., 134 F.3d 50; Enforcement Guidance on Remedies Available to UndocumentedWorkers Under Federal Employment Discrimination Laws, supra note 87.

A.P.R.A. the employer knowingly hiredunauthorized workers and then retaliat-ed against them for engaging in unionactivities.106 The Second Circuit affirmedthe National Labor Relations Board’s tai-lored remedy, which included an offer ofreinstatement conditioned on the work-ers’ ability, within a reasonable period, tosatisfy the I-9 employment eligibility ver-ification requirements.107 Indeed theNational Labor Relations Board interpretsthe Hoffman decision as not precluding aconditional reinstatement order

against employers who floutboth the Act and IRCA by hiringand firing known undocumentedworkers. Because the employeemust comply with IRCA prior toreinstatement, a conditionalorder satisfies the Court’s con-cern that the Act not conflictwith IRCA’s extensive employ-ment verification system.108

Advocates also should argue, as the dis-sent in Hoffman noted, that affordingundocumented workers the same rightsbut not granting them access to full reme-dies serves only as an economic incen-tive for unscrupulous employers know-ingly to hire and exploit undocumentedworkers in complete contravention ofCongress’ intent in enacting the Immigra-tion Reform and Control Act.109

If the worker did not use any falsedocuments to obtain employment, be-cause either the employer did not requirethe worker to present documents or theemployer did not require the worker to

fill out the I-9 employment eligibility ver-ification form, advocates should try to dis-tinguish these facts from those in Hoffman.That is, advocates should argue that theworker did not engage in the “serious ille-gal conduct” that the Court condemned,given that merely working in the UnitedStates is not a crime. However, some con-servative courts may consider mere unlaw-ful presence a basis to deny remedies foremployment discrimination.

GIVEN THE CHANGE IN LAWS, POLICIES, AND ATTI-tudes affecting immigrants since September11, legal aid advocates need to give highpriority to assisting low-wage immigrantworkers because legal aid programs oftenare the only resource within their reach.Advocates can do so by conducting out-reach and education on employment issuesaffecting immigrant workers and throughcollaborative efforts among Legal ServicesCorporation–restricted programs and non-restricted programs, civil rights organiza-tions, advocacy groups, law school clin-ics, and law firms to provide direct servicesto both documented and undocumentedworkers. Because the September 11 eventsare likely to perpetuate citizenship andnational-origin biases and because theneed to defend against expansive inter-pretations of Hoffman is critical, legal aidprograms are an essential partner in ensur-ing that low-wage immigrant workers’rights are enforced. The assistance and par-ticipation of legal aid agencies also are cru-cial to bringing test cases and helping elim-inate discriminatory employment practices.



106 A.P.R.A., 134 F.3d at 52.107 Id. at 57–58. Because the employer has knowledge of the worker’s lack of employment

authorization, the worker must satisfy the I-9 employment eligibility verification require-ments again, unlike the worker who is ordered reinstated and is not known to be unau-thorized. See 8 C.F.R. § 274a.2(b)(1)(viii)(5) (2001).

108National Labor Relations Board (NLRB), General Counsel Memorandum GC 02-06,Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens afterHoffman Plastic Compounds Inc. (July 19, 2002), www.nlrb.gov/gcmemo/gc02-06.html(section 4, “Reinstatement Rights of Undocumented Discriminatees”).

109 See Hoffman, 122 S. Ct. at 1287 (Breyer, J., dissenting).



Documents

Growing Immigrant Communities Face - povertylaw.orgpovertylaw.org/files/docs/article/chr_2002_july_august_hincapie.pdf · of the early to mid-1990s. ... or those perceived to be Arabs,