EEOC May Probe Unauthorized Worker's Bias Charge

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By Kevin McGowan

April 25 — The Equal Employment Opportunity Commission may investigate national origin bias and retaliation claims against a Maryland car wash based on a charge filed by a fired employee who was unauthorized to work in the U.S., the U.S. Court of Appeals for the Fourth Circuit decided.

In an April 25 decision enforcing an EEOC subpoena, the court emphasized it wasn't addressing whether the commission has a viable Title VII cause of action on behalf of an alien without valid work authorization or any remedies such a worker could claim if a Title VII violation were found. The court also isn't deciding if Maritime Autowash Inc., the employer named in Elmer Escalanate's EEOC charge, might have valid defenses against the subpoena, the Fourth Circuit said.

The decision hands the EEOC a victory regarding its authority to investigate discrimination charges filed by undocumented workers. But it intentionally leaves unresolved broader questions about whether Title VII of the 1964 Civil Rights Act provides substantive coverage and remedies for such workers.

Court's Limited Role

It would be “premature” to address substantive coverage issues when the only issue is whether the EEOC plausibly has power to undertake the probe under Title VII, the court said.

“The only question we must consider now is whether the EEOC's subpoena, designed to investigate Escalante's Title VII charges, is enforceable,” Judge J. Harvie Wilkinson III wrote. “We hold that it is.”

A court's role in reviewing an EEOC subpoena is limited to deciding if the commission has jurisdiction to conduct an investigation, the Fourth Circuit said.

Both parties agreed Escalante held “no valid work authorization” while working for the car wash from May 2012 until July 2013.

But the EEOC and Maritime disagreed on how Escalante's undocumented status affects the agency's authority to investigate his charges. He alleged that the car wash treated Hispanic employees less favorably because of their national origin and fired Escalante and other Hispanic employees who complained about the biased treatment.

Maritime argued that someone lacking proper work authorization was never “qualified” for employment and therefore lacks any Title VII cause of action. A federal district court agreed with Maritime and denied the EEOC's application to enforce the subpoena seeking information on Escalante's employment as well as that of other Hispanic workers at the car wash.

Title VII's ‘Plausible' Basis for Probe

Title VII's “plain language” provides a “plausible” or “arguable” basis for the EEOC's subpoena, the Fourth Circuit said.

Title VII defines “employee” broadly as “any individual employed by an employer” and makes it illegal to fire any individual based on national origin, the court said. The statute also allows any “person claiming to be aggrieved” to file EEOC charges, the court said.

“Nothing in the statute explicitly bars undocumented workers from filing complaints,” Wilkinson wrote, in an opinion joined by Judge David C. Norton.

Escalante, regardless of his work authorization status, was employed by Maritime and allegedly terminated because of national origin and in retaliation for bias complaints, the court said.

“The EEOC's investigation of Escalante's charges was therefore at least plausibly and arguably related to the authority that Congress conferred upon the commission,” the court said.

Maritime challenged only the EEOC's subpoena authority, so the district court should have stopped once it determined the agency had power to investigate, the Fourth Circuit said.

This isn't a case in which the EEOC “went rogue or jumped the tracks and sought to investigate something unrelated to its statutory charge,” the court said.

Maritime argued that a reviewing court must ascertain if the EEOC's investigation is based on a “valid charge” as a “jurisdictional prerequisite” to subpoena enforcement. That includes asking whether the charge raises a viable cause of action or remedy, the employer contended.

The district court decided no valid Title VII causes of action or remedies are open to those lacking valid work authorization, so the EEOC had no authority to investigate Escalante's charge.

“This has it all backwards,” Wilkinson wrote. “A court need not first address causes of actions or remedies any time it address an agency subpoena.”

Premature to Address Other Issues

It's “premature” to address those substantive Title VII issues in the context of an EEOC subpoena enforcement action, the court said. Maritime doesn't dispute Escalante's compliance with the threshold requirements for filling an EEOC charge, the court said. The EEOC simply is asking to investigate, not to file a lawsuit or to seek remedies for Escalante or any other individual at this point, the court said.

“This court has not required the showing of a viable cause of action or remedy at the subpoena enforcement stage, and for good reason,” Wilkinson wrote. “Ensuring that charges meet” the Title VII guidelines “on form, content and timeliness is a far cry from predicting and evaluating what relief on the merits the charging party might ultimately claim.”

Courts shouldn't “venture prematurely” into the merits of employment lawsuits that haven't been filed yet, the Fourth Circuit said. Maritime's suggested approach “would cram substantive questions of statutory coverage into the confines of subpoena enforcement,” the court said.

“At the point where an investigation has barely started and no lawsuit has been filed, the EEOC is hard-pressed to determine the validity of the charges,” Wilkinson said. “Regular order suggests allowing the EEOC investigation to run its course and reserving judgment on the merits for a later date.”

Also, whether and to what extent Title VII covers undocumented aliens presents “a novel and complex problem” that's “especially ill-suited to a premature and absolute pronouncement,” the court said.

No ‘Carte Blanch' for Employers

Reviewing the relevant U.S. Supreme Court and Fourth Circuit precedents, the court said the coverage of undocumented workers under federal employment laws is “more nuanced and less categorical” than Maritime suggests.

Maritime is “asking the court for carte blanche to both hire illegal immigrants and then unlawfully discriminate against those it unlawfully hired,” Wilkinson wrote. “Maritime would privilege employers who break the law above those who follow the law. And it would block the EEOC from shining even the dimmest light upon the employer's actions.”

But the EEOC “must be allowed to do its job,” albeit with limits on the agency's power, the court said.

As long as the EEOC is investigating charges “plausibly within its delegated powers,” as it's doing in this case, the courts shouldn't obstruct the agency probe, Wilkinson said.

Niemeyer's Concurring Opinion

In a concurring opinion, Judge Paul V. Niemeyer agreed the EEOC is acting within its Title VII powers, given that its investigation could reveal Maritime discriminated against Hispanic employees who are legally authorized to work.

But Niemeyer questioned the majority's premise that courts examining whether an EEOC's subpoena exceeds the agency's substantive jurisdiction would somehow free employers to “impose all manner of harsh working conditions” on undocumented aliens.

“It would simply recognize that an investigation of the employer's alleged civil and criminal violations may fall more appropriately under the purview of other agencies, whose jurisdictions are defined by other, more applicable statutory parameters,” he wrote.

EEOC attorneys in Washington represented the commission. Eccleston & Wolf PC represented Maritime Autowash.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at