On July 14, 2009, the U.S. District Court for the District of Columbia issued a decision rejecting an employer’s motion for summary judgment to dismiss a complaint filed by an undocumented black female employee from Nigeria who had been pregnant. The plaintiff alleged violations of Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. §1981) on the grounds of disparate treatment, retaliation and harassment based on race, national origin and pregnancy. Iweala v. Operational Technologies Services, Inc., No. 1-04-cv-2067 (D.D.C. July 14, 2009). In its opinion, the Court rejected the employer’s claims that, among other things, the protections of Title VII did not extend to the plaintiff because she lacked legal authorization to work in the United States. Indeed, the Court indicated that the definition of an employee in Title VII “seem[s] to encompass all employees regardless of immigration or visa status, …”
Noticeably absent from the Court’s decision was any discussion about what damages, if any, the plaintiff might recover in view of her undocumented status. This has been a subject of great debate in both state and federal courts since the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). In Hoffman Plastic, the Supreme Court held that the National Labor Relations Board (NLRB) could not award back pay under the National Labor Relations Act to undocumented foreign nationals, even if they were discharged for engaging in protected activities. The Court reached this conclusion on the basis of the Immigration Reform and Control Act of 1986 (IRCA), which specifically prohibited such undocumented aliens from working.
Following the Supreme Court’s decision in Hoffman Plastic, state and federal courts have struggled to apply its principles to damage claims arising in a variety of different contexts. Compare Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998), cert. denied, 525 U.S. 1142 (1999)(Title VII does not cover undocumented workers because they are not qualified for employment), with Rivera NIBCO, Inc., 364 F.3d 1057 (11th Cir. 2004)(Title VII applies to undocumented workers). Even assuming that these workers can claim statutory protection, there is wide disagreement in the courts as to what damages they are entitled to recover. Compare Flores v. Amigon, 233 F.Supp. 2d 462 (E.D.N.Y. 2002), with Crespo v. Evergo Corp., 841 A.2d 471 (N.J. Super. Ct., App. Div.), cert denied, 849 A.2d 184 (N.J. 2004).
One common theme in these cases appears to be the absence of experienced immigration analysis that will assist a court in reconciling the difficult public policy options between denying and granting coverage to undocumented workers. Denying coverage appears to give unscrupulous employers the right to abuse undocumented workers with impunity. Granting coverage to undocumented workers appears to violate the intent of Congress in IRCA. The Immigration Law Group continues to work closely with our Labor and Employment litigators to make sure that EBG clients have the benefit of our collective analysis in these difficult cases.