New Guidelines on Illegal Workers Spell Out Risk to Employers

Workers who are in the United States illegally have rights under federal antidiscrimination laws, and violating those rights may be costly for employers.

That’s the message sent out last week by the U.S. Equal Employment Opportunity Commission, which broadened the kinds of remedies that illegal workers can win if they are the victims of discrimination.

The new guidelines say that illegal workers are entitled to the same remedies as other workers who are discriminated against, including back pay and even a job or reinstatement, if giving them work would not conflict with immigration laws. Federal laws prohibit discrimination in employment and pay on the basis of race, color, national origin, sex, age, religion and disability.

“This guidance makes clear that the anti-discrimination laws under the commission’s jurisdiction protect all employees across the country, regardless of their work status,” EEOC Chairwoman Ida L. Castro said.

“Unauthorized workers are especially vulnerable to abuse and exploitation,” Castro said. “It is imperative for employers to fully understand that discrimination against this class of employees will not be tolerated and they will be responsible for appropriate remedies if they violate the civil rights laws.”

Although EEOC guidelines are not laws, they often influence courts ruling on workplace issues.

The new guidance, which replaces a 10-year-old policy, drew immediate criticism from U.S. Rep. Lamar S. Smith (R-Texas), who called the action “absurd.”

“The Clinton administration wants to force employers to hire illegal aliens, something that is clearly illegal,” Smith said in a statement. “These rules would, for example, require employers to hire back individuals who had been fired when it is illegal to have hired them in the first place.”

But Diana Johnston, EEOC assistant counsel, said such an interpretation of the new guidance is wrong.

The new guidance specifically exempts employers from knowingly hiring or rehiring illegal workers, even if they had been discriminated against, she said. The big change in the new guidelines involves the potential for winning back pay, damages and attorneys’ fees, she said.

“We don’t want anybody doing anything that conflicts with the purpose of the immigration laws,” Johnston said. “If you don’t fully enforce these laws, then you get into a situation where at least some employers will find undocumented employees to be desirable employees because they can discriminate against them.”

Immigrant-rights advocates have been pushing for the change in light of court rulings and changes in law during the last few years, said Marielena Hincapie, a staff attorney with the Employment Law Center, a San Francisco nonprofit that represents workers.

“This tells employers that, yes, you will be on the hook for back pay, and yes, it will cost you,” Hincapie said. But the EEOC must also help educate workers about their rights, she said, because most immigrants fear retaliation by their employers.

Undocumented workers “are at the whim of the employer contacting the INS if they ever try to improve their working conditions,” Hincapie said. “If they come forward to complain about sexual harassment, for example, they are risking not only their job but the livelihood of their whole family.”

Immigration lawyer Carl Shusterman of Los Angeles said he hopes the EEOC will devote the resources necessary to reduce abuse of undocumented workers.

“If carried out correctly, this will really help reduce discrimination and exploitation of these workers, who are the most vulnerable,” Shusterman said.