Are There Limits on Undocumented Workers' Title VII Rights?

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Patrick Dorrian

May 2 — Workers who are in the U.S. illegally are protected under federal job bias laws, but maybe only after they’ve been hired and perhaps not from all forms of discrimination.

It’s settled law that undocumented workers can’t be discriminated against based on any of the Title VII-listed traits, but that list doesn’t include immigration or citizenship status, Marielena Hincapié told Bloomberg BNA April 29. She’s the executive director of the National Immigration Law Center in Los Angeles.

Although national origin is a protected trait under Title VII of the 1964 Civil Rights Act, “in everyday life, there’s often a fine line” between behavior that targets a worker’s national origin and behavior directed at his or her immigration status, Hincapié said.

Donald R. Livingston of management-side firm Akin Gump Strauss Hauer & Feld LLP in Washington said undocumented workers may only be covered under Title VII while actually working for an employer. At least that's the law in the U.S. Court of Appeals for the Fourth Circuit, he said.

Under Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 77 FEP Cases 777 (4th Cir. 1998) (en banc), a Title VII retaliation case, employers in the Fourth Circuit can’t be held liable for refusing to hire someone who isn’t authorized to work in the U.S., Livingston told Bloomberg BNA April 29.

Egbuna May Be ‘Controversial.'

That arguably also extends to wrongful terminations, which are essentially equivalent to refusals to hire because they both involve a “failure to employ,” Livingston said. He represented the employer in Egbuna.

The Fourth Circuit’s view may be “controversial” in other jurisdictions, he noted.

Indeed, Hincapié and Rebecca Smith of the National Employment Law Project both described Egbuna using the same word: “outlier.”

Egbuna is at odds with federal, state and U.S. Supreme Court precedent holding that undocumented workers are covered under labor and employment laws, Smith told Bloomberg BNA. She's NELP's deputy director in Seattle.

Egbuna was wrongly decided, in my opinion,” she said, adding that the case has “largely been ignored” elsewhere.

Fourth Circuit Declines Fresh Look

The Fourth Circuit appeared ready to re-examine the issue of undocumented workers' protections under Title VII in a case involving a Hispanic former employee at a Maryland car wash who lacked authorization to work in the U.S.

According to charges Elmer Escalante filed with the Equal Employment Opportunity Commission, the car wash subjected its Hispanic workforce to unequal treatment based on national origin, including longer hours, shorter breaks and lower wages.

However, the case was before the court on the EEOC's application to enforce a subpoena it served on Maritime Autowash Inc. while attempting to investigate Escalante's charges. The EEOC contended that Title VII gives it the power to investigate Escalante's charges regardless of whether he was authorized to work in the U.S.

Maritime cited Egbuna in pressing the broader issue of undocumented workers' coverage under Title VII, but the Fourth Circuit April 25 decided the case based on the narrower, subpoena enforcement issue (EEOC v. Maritime Autowash, Inc., 2016 BL 130507 (4th Cir. 2016)).

The court agreed with the EEOC that Maritime can't refuse to comply with the agency's investigatory demands even if Escalante wasn't authorized to work in the U.S. and he personally may have limited or no rights under Title VII (79 DLR AA-1, 4/25/16).

On the broader issue, the EEOC had argued that the plain language of Title VII includes undocumented workers within its scope. The statute, in essence, states that it applies to “any individual” who is “employed by an employer” and mentions nothing about authorized work status, the commission maintained.

That position is consistent with the one expressed in the agency's compliance manual, which states that federal EEO laws “protect all employees who work in the United States for covered employers, regardless of citizenship status or work authorization.”

Related Law and Cases

The Immigration and Nationality Act expressly prohibits discrimination based on national origin or citizenship status. However, it doesn't apply to undocumented workers, Marielena Hincapié, the executive director of the National Immigration Law Center in Los Angeles, told Bloomberg BNA.

Some other cases involving aspects of the issue include:


  • Guerra v. Manchester Terminal Corp., 498 F.2d 641, 8 FEP Cases 433 (5th Cir. 1974): Upholds finding that the Civil Rights Act of 1866 was violated when a Mexican national was involuntarily transferred by employer, allegedly because his family resided in Mexico.
  • Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 99 FEP Cases 1377 (10th Cir. 2007) (en banc): Upholds suspension and termination of legal Mexican immigrant who insisted on apology after employer suspended him on eve of rumored raid by federal immigration authorities because it incorrectly believed he was using a false Social Security number (39 DLR AA-1, 2/28/07).
  • Juarez v. Northwestern Mut. Life Ins. Co., 69 F. Supp. 3d 364 (S.D.N.Y. 2014): Deferred action for childhood arrivals recipient allegedly denied work with insurance company because he wasn't a U.S. citizen and didn't have a green card can pursue Section 1981 class claim for alienage discrimination (224 DLR A-2, 11/20/14).
  • Ibarra v. City of Willmar, 2014 BL 195020, 123 FEP Cases 1543 (D. Minn. 2014): Asking Mexican-born worker if he's an “illegal alien” supports Title VII national origin discrimination claim (134 DLR A-3, 7/14/14).
  • Guerrero v. Cal. Dep't of Corr. & Rehab., 119 F. Supp. 3d 1065, 127 FEP Cases 1478 (N.D. Cal. 2015): Asking whether job seekers previously used false Social Security numbers has a disparate impact on Latino applicants (140 DLR A-3, 7/22/15).


Sparse Case Law

Review of undocumented workers' rights under Title VII by other federal appeals courts appears to be limited.

Smith cited Rivera v. NIBCO, Inc., 364 F.3d 1057, 93 FEP Cases 929 (9th Cir. 2004). In that case, the Ninth Circuit denied an employer's bid to discover the immigration status and employment eligibility of workers alleging national origin discrimination under the statute (71 DLR AA-1, 4/14/04) and later overturned on procedural grounds a jury verdict for the employer (63 DLR A-7, 4/5/10), clearly implying that such a claim lies.

The Seventh Circuit in Cortezano v. Salin Bank & Trust Co., 680 F.3d 936, 115 FEP Cases 77 (7th Cir. 2012), upheld summary judgment in favor of a bank on a former employee's claim under Title VII that she was discharged because of her marriage to a Mexican immigrant.

It agreed with a lower court that the evidence showed the bank was motivated by her husband's “undocumented alien” status, not his Mexican ancestry, as the plaintiff alleged (98 DLR AA-1, 5/21/12).

Dana E. Stutzman, who represented the bank in Cortezano, told Bloomberg BNA April 26 that the Seventh Circuit relied on the Supreme Court's decision in Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 6 FEP Cases 933 (1973). In Espinoza, the justices looked at the legislative history of Title VII in deciding that the statute doesn't prohibit discrimination based on citizenship or alienage status, he said.

In ruling for the bank in Cortezano, the Seventh Circuit raised the distinction between national origin discrimination and citizenship status bias on its own initiative, said Stutzman, who's with Hall, Render, Killian, Heath & Lyman P.C. in Indianapolis. The lower court “never made the distinction,” and the parties also didn't raise the issue, he said.

The facts in Cortezano supported the conclusion that the bank's actions were based on immigration status, not national origin, but the distinction can be “a head-scratcher for many people,” Stutzman said.

Distinguishing Types of Bias

Perhaps adding to the uncertainty, the EEOC's compliance manual states that discrimination based on citizenship or immigration status “violates Title VII's prohibition on national origin discrimination if it has the purpose or effect of discriminating on the basis of national origin.”

Elsewhere, the agency explains that “a citizenship requirement would be unlawful if it is a ‘pretext' for national origin discrimination, or if it is part of a wider scheme of national origin discrimination.”

The EEOC also cites Espinoza as support for its position. In Espinoza, while noting that the question before the court wasn't the broader issue of whether Title VII provides undocumented workers coverage from the listed forms of discrimination, Justice Thurgood Marshall wrote that “Title VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.”

Echoing the EEOC's view, Hincapié said an employer's expression of citizenship status concerns may be code for national origin discrimination. But it's difficult in many cases to say what the employer was thinking, she noted.

She said the sort of facts that help to distinguish national origin bias from immigration concerns are remarks or actions directed at a worker's language, accent, culture or ancestry. Comments noting that an employee's work authorization has or is about to expire, on the other hand, more likely indicate an immigration focus, Hincapié said.

According to Stutzman, the analysis is “very fact intensive.” Courts look at what the plaintiff is alleging and whether he or she can show the employer wasn't driven to act just based on citizenship status but also based on bias regarding the plaintiff's country of origin, he said.

Maritime Different in Other Ways

The allegations in Maritime would seem to describe national origin discrimination rather than citizenship status bias. The case also appears to be distinguishable from Egbuna in other ways.

Hincapié noted that the employer in Egbuna refused to even hire the worker because he was no longer authorized to work in the U.S. In Maritime, however, Escalante actually was hired and worked for the employer for more than a year.

Moreover, while the employer in Egbuna was acting in compliance with federal immigration law in refusing to hire the worker, the EEOC alleged in Maritime that the employer aided undocumented workers, including Escalante, in obtaining bogus work authorizations. The company did so even after federal immigration authorities came knocking, according to the EEOC.

Smith and Hincapié said applying Egbuna's holding in fact situations like those described in Maritime would undercut the policy underlying the extension of employment protections to undocumented workers: the desire to avoid creating “perverse incentives” for employers to hire such workers partly because they could then be denied basic job rights without consequence.

“It's the idea of not giving employers a free pass to hire and then exploit” undocumented workers, Smith said. Not only does that harm undocumented workers and other employees who witness the abuse, it also makes it more difficult for labor law and immigration authorities to do their jobs, she said.

But Stutzman questioned whether it's the role of the courts to make such policy determinations. Rather, that's the role of the legislature, he said.

He cited the Lilly Ledbetter Fair Pay Act of 2009 (16 DLR AA-1, 1/28/09), as one of the many times throughout U.S. history when the legislature has broadened or clarified a law it believed the courts were reading too narrowly, even though the courts were interpreting the statute as written.

Egbuna ‘Not Fully Delineated.'

The Fourth Circuit's disposition in Maritime means that the case goes back to the EEOC for further investigation and the question of undocumented workers' coverage under Title VII—and perhaps Egbuna's continued vitality—is moot, at least for now.

But despite not reaching the question, the Maritime judges noted the difficulty the issue presents, with Judge J. Harvie Wilkinson saying in the majority opinion that it is “a novel and complex problem.” He said “hard questions arise” when undocumented workers invoke employment discrimination laws.

In a concurring opinion, Judge Paul V. Niemeyer said Egbuna casts “doubt on whether Title VII covers employment relationships expressly prohibited by immigration statutes.”

But Livingston stressed that Egbuna was a failure-to-hire case. While its holding arguably extends to the wrongful termination or “failure to employ” context, that may be different from the unequal pay claim apparently at issue in Maritime, he said.

“Seeking redress for discriminatory conduct during actual employment is potentially a different matter,” Livingston said. He said it “seems a little illogical” to conclude that Egbuna necessarily forecloses a claim by an unauthorized worker to recover damages for Title VII bias based on work already performed.

For that reason, he doesn't believe Egbuna“provides a great deal of comfort to employers” who are illegally hiring undocumented workers and then exploiting them further by subjecting them to discrimination.

He said Wilkinson and Niemeyer both recognize the same principle in their respective opinions. As Niemeyer expressly states, “the scope of Egbuna has not been fully delineated,” Livingston said.

To contact the reporter on this story: Patrick Dorrian in Washington at

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

Request Labor & Employment on Bloomberg Law