The U.S. Equal Employment Opportunity Commission

Questions & Answers
Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws

This guidance explains the availability of remedies under Title VII, the Age Discrimination in Employment Act, the Americans With Disabilities Act and the Equal Pay Act where an employer has unlawfully discriminated against undocumented workers. The guidance supersedes "Policy Guidance: Effect of the Immigration Reform and Control Act on the Remedies Available to Undocumented Aliens Under Title VII," N-915.040 (April 26, 1989).

Q: Are undocumented workers protected under the federal anti-discrimination laws?

A: Yes. The federal employment discrimination laws protect all employees in this country who work for an employer with 15 or more employees, including those who are not authorized to work.

Q: Doesn't this create a conflict with the immigration laws which prohibit employers from employing unauthorized workers?

A: No. 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 tolerated discrimination.

Q: What remedies are available under the laws enforced by the Commission for workers who are authorized to work?

A: The basic remedies available under these laws are reinstatement if the employee was unlawfully terminated, instatement if the employee was discriminatorily denied a job, back pay, other appropriate injunctive relief, damages, and attorneys' fees.

Q: Are undocumented workers entitled to the same remedies available to all other workers for violations of the laws enforced by the Commission?

A: Generally, yes, but not if the award would conflict with the requirements of immigration laws. For instance, in the case of an undocumented worker, s/he cannot be reinstated unless s/he produces the work documents required by immigration law.

Q: What general limitations on remedies apply to unauthorized workers?

A: Generally, applicable limitations on the availability of certain remedies apply equally to unauthorized workers as all other workers. In "mixed motive" cases, if an employer can show it would have taken the same action against the worker even absent the discrimination, the employer is not required to reinstate the employee or pay back pay or damages. In "after-acquired evidence" cases, if, after the employer takes a discriminatory action against an employee, the employer learns that the employee has engaged in wrongdoing for which the employer would have taken the same action, remedies may be limited. In both mixed motive and after-acquired evidence cases, however, the employer remains fully liable for the wrongdoing. However, unless an individual who has been discriminated against has satisfied Immigration and Naturalization Service requirements for legal authorization to work, reinstatement would not be among the remedies available.

Q: Are there additional limitations on relief for unauthorized workers?

A: The following limitations apply:

• If an employer knows that a worker who was hired after November 6, 1986 is unauthorized, reinstatement of that worker can be conditioned on the worker being able to satisfy IRCA's verification requirements within a reasonable period of time. 

• This condition does not apply to workers who were employed by the employer on or before November 6, 1986, because IRCA does not require employers to seek work authorization documents from those workers.

• Workers are eligible for back pay to the same extent as any other worker, except that back pay is cut off if the worker has left the country and is not legally eligible to return.

A:Yes. Such workers are particularly vulnerable to threats to report them to the INS or other forms of retaliation and EEOC takes the concern of retaliation very seriously.

• It is unlawful to threaten to report, or to report a worker to INS because a worker opposed unlawful discrimination or participated in a proceeding under the anti-discrimination laws.

• Where the employer appears to have acquired information about a worker's unauthorized status after that worker complained of discrimination, the Commission will investigate whether the information was acquired through a retaliatory investigation.

If an unauthorized worker is retaliated against, that worker is entitled to damages without regard to his or her work status. 

Q: Why did the Commission change its position from the 1989 Policy Guidance?

A: In 1989, the Commission concluded that, because IRCA prohibited employers from employing undocumented workers hired after November 6, 1986, such workers were not entitled to reinstatement or to back pay for the period when they had not worked because of a discriminatory failure to hire or termination. Such workers were, however, entitled to back pay for any periods in which they were working for the employer but were discriminatorily underpaid. Legal developments since 1989 persuaded the Commission that its position regarding back pay was no longer correct. In addition, the Commission determined that it was important to address other important legal developments regarding remedies. In particular:

• The Second Circuit Court of Appeals affirmed a decision of the National Labor Relations Board (NLRB v. A.P.R.A. Fuel Oil Group) that unauthorized workers are eligible for back pay under the National Labor Relations Act (NLRA) and that back pay should only be cut off after the worker leaves the country and is not eligible to return. The court also stressed that imposing monetary penalties on employers who violated the law best served the goals of the NLRA and was fully consistent with the goals of the immigration laws. The Commission concluded that because Title VII's back pay provision was modeled on the NLRA, the same analysis should apply.

• Congress enacted the Civil Rights Act of 1991, which 

• provided that Title VII is violated when a prohibited factor motivated the employer's action, even if other, lawful factors - such as unauthorized immigration status - also motivated the action; and

• provided for compensatory and punitive damages under Title VII and the ADA based on Congress' finding that damages are necessary to both compensate victims of discrimination and to deter future violations.

• The Supreme Court's decision in McKennon v. Nashville Banner Publishing Co. made clear that an employer is responsible for its discriminatory actions -- even if, after the action, the employer discovers information that would have justified the action on other, nondiscriminatory grounds. Under McKennon, an employer's discovery that a worker is undocumented will not protect it from liability for a discriminatory action it previously took with regard to that worker.

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Questions & Answers:  Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws

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