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EEOC Pursues Claims of Workplace Discrimination Filed By Legal and Illegal Immigrant Workers Alike

A recent decision from the Fourth Circuit Court of Appeals (EEOC v. Maritime Autowash, Inc., 2016 WL 1622290 (4th Cir., April 25, 2016)) has reinforced the notion that undocumented immigrant workers are protected from workplace discrimination under Title VII of the Civil Rights Act, even though they may not have work authorization under our immigration laws. The question before the Court was whether the Equal Employment Opportunity Commission (EEOC) has the power to enforce a subpoena when investigating a charge of national origin discrimination filed by an employee who was not authorized to work in the first place. The District Court had ruled that the EEOC had no such power, but the Fourth Circuit Court of Appeals disagreed. The appellate court reasoned that the EEOC must be allowed to enforce the law against all employees, whether authorized to work or not, because stripping undocumented workers of the protections of our anti-discrimination laws would give employers unlimited power to unlawfully hire undocumented immigrants and then discriminate against them. The Court did not rule on the merits of the underlying discrimination claim, but it did remand the matter back to the District Court with instructions that the EEOC’s subpoena be enforced, so that the agency could proceed with its investigation.

Foreign workers, whether or not they are lawfully authorized to work, are protected against discrimination not just on account of their national origin, but also based on any other trait protected under U.S. laws. For instance, in EEOC v. Restaurant Co., 490 F.Supp.2d 1039 (D. Minn., 2007), the employer argued that the plaintiff had no authority to bring a lawsuit for sexual harassment and retaliatory termination because the employee was suspected of being in the U.S. illegally and did not have work authorization. The Minnesota District Court disagreed and found that the employee could bring sexual harassment and retaliation claims despite her lack of lawful immigration status. The Court also stated that the EEOC had authority to investigate and pursue Title VII discrimination claims on behalf of the undocumented worker and against the restaurant chain. Shortly after the Court denied the employer’s request to dismiss the lawsuit, the parties entered into a consent decree which required the restaurant chain to pay $127,000 in damages.

The EEOC has continued its focus on discrimination claims filed by workers who are immigrants or of immigrant descent. Two recent lawsuits exemplifying the EEOC’s efforts are EEOC v. Wisconsin Plastics Inc. (Case No. 14-cv-663, Wisconsin Eastern District Court), and EEOC v. Antonella’s Restaurant and Pizzeria, Inc., et al. (Case No. 15-CV-07666, New York Southern District Court), both of which are still pending. In EEOC v. Wisconsin Plastics, filed in 2014, the EEOC claimed violations of Title VII when Wisconsin Plastics laid off several production operators of Hmong and Hispanic descent because they were not fluent in English, despite the fact that the employer admitted language skills were not required for the job those employees were performing.

In EEOC v. Antonella’s Restaurant, filed in 2015, the EEOC sued three New York restaurants claiming that the business owners created a hostile work environment against Hispanic employees on account of their national origin in violation of Title VII. The EEOC alleged that the owners for the three restaurants constantly degraded and humiliated Hispanic workers by referring to them as “f***” Spanish, Mexicans, Hispanics or landscapers. Furthermore, the EEOC asserted that one restaurant co-owner demanded that Hispanic employees speak only English while at work and, to emphasize his demand, he showed a one-dollar bill to the workers and allegedly said: “This is America, you must speak English.” The EEOC complaint also stated that one of the Hispanic workers was fired the day after he objected to this mistreatment.

Most recently, on June 2, 2015, the EEOC submitted for public comment a Proposed Enforcement Guidance on National Origin Discrimination, which gives several examples of when employers may or may not use English language fluency as a job requirement, or when an employee may be denied a job opportunity because of a thick foreign accent, or other actions that could amount to national origin discrimination. Although this Proposed Guidance is not yet final and may be revised once the EEOC takes into consideration the public comments, many examples included in it are similar to the scenarios that are the subject of the lawsuits referenced above.

In light of these facts and ongoing efforts by the EEOC to curb discrimination against foreign workers, employers should revisit their policies and procedures to ensure that they do not discriminate, whether directly or indirectly, against their foreign national employees. We will continue to monitor the issue and we will report once the EEOC publishes its Final Guidance regarding national origin discrimination. In the meantime, please do not hesitate to contact us for any questions regarding employment of foreign nationals in the U.S.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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