Proposing a Uniform Remedial Approach For Undocumented Workers Under Federal Employment Discrimination Law

November 1, 2011

Given the recent influxes of undocumented workers who have entered the United States in order to obtain employment, the issue of their remedial rights under federal employment discrimination law has become highly significant. Under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and/or the Age Discrimination in Employment Act (ADEA), these remedies could include back pay, front pay (in lieu of reinstatement), compensatory damages, punitive damages, liquidated damages, and/or reasonable attorneys’ fees, as applicable.

At present, there is no uniform judicial approach for determining the monetary remedial rights of the millions of undocumented workers under these laws. Instead, courts have developed remedial approaches that span the spectrum in terms of scope. At one end is an approach that forecloses none of these remedies. In the middle is an approach that forecloses only some of these remedies. At the other end is an approach that forecloses all of these remedies.

This Article proposes a “Conditional Foreclosure Approach” as the uniform approach for ascertaining the remedial rights of undocumented workers who pursue federal discrimination and/or retaliation claims. This new approach has two distinct features: (1) a “disqualifying condition,” which provides that an undocumented worker must have violated the employee-specific provisions (prohibiting fraudulent conduct in the employment and hiring processes) of the Immigration Reform and Control Act (IRCA) as a condition to any potential remedy foreclosure; and (2) “limited remedy foreclosure,” which forecloses an undocumented worker from, at most, the monetary remedies of back pay and front pay, while preserving all other remedies (such as compensatory damages, punitive damages, liquidated damages, and reasonable attorneys’ fees).

This new approach represents a balanced “middle ground” that draws from the many relevant sources on this issue, including: the IRCA and its congressional philosophy and legislative history; U.S. Supreme Court precedent under the National Labor Relations Act (NLRA); federal employment discrimination policy and purpose; and federal immigration policy and purpose. This new approach properly promotes both federal employment discrimination policy and federal immigration policy (without sacrificing either) and adequately holds accountable both employers and undocumented workers for unlawful conduct under the IRCA and/or federal employment discrimination law.

October 2008

No. 1