EEOC v. Phase 2 Investments: Are undocumented workers covered by the EEO laws?

As explained in EEOC v. Phase 2 Investments, No. JKB-17-2463 (D. Md. Apr. 17, 2018), undocumented workers are covered by the EEO laws, but there is a significant caveat. Since immigration law prohibits the hiring of undocumented workers, any remedies available for EEO violations must be consistent with immigration law. What this means effectively is that undocumented workers probably have little recourse if they are not hired or were fired for discriminatory reasons, but they could be entitled to relief if subjected to discrimination on the job, such as in the form of a hostile work environment or wage discrimination. Providing a remedy for on-the-job discrimination is consistent with immigration law because employers would have an incentive to hire undocumented workers and violate immigration law if workplace protections did not apply to them. Although the court in Phase 2 states that undocumented workers cannot obtain back pay, that may not be true for what the Department of Labor calls "work actually performed." If an employer were not required to provide back pay to an undocumented worker who was underpaid in violation of minimum wage laws or EEO laws, that restriction might encourage employers to hire undocumented workers. 

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.