The extent of protection offered to undocumented immigrants by various state and federal laws is a matter of ongoing debate, both in the court system and among politicians. The Fourth Circuit Court of Appeals recently issued a ruling allowing the Equal Employment Opportunity Commission (EEOC) to investigate a discrimination claim under Title VII of the Civil Rights Act of 1964 on behalf of an undocumented immigrant. EEOC v. Maritime Autowash, Inc., No. 15-1947, slip op. (4th Cir., Apr. 25, 2016). The very limited question before the court was whether the EEOC could subpoena the employer’s records. Despite precedent stating that undocumented immigrants lack standing under Title VII, the court found that the employer should not be allowed “to both hire illegal immigrants and then unlawfully discriminate against those it unlawfully hired.” Id. at 14.
Federal immigration law prohibits employers from recruiting or hiring “aliens” who are not authorized to work in the U.S., or from continuing to employ such a person after learning of their lack of work authorization. 8 U.S.C. §§ 1324a(a)(1) – (2). The law also includes provisions prohibiting employment discrimination on the basis of national origin or citizenship. The protections relating to citizenship, however, do not extend to people who lack lawful immigration status. 8 U.S.C. § 1324b(a)(3). The question is therefore whether undocumented immigrants can make a claim under Title VII, which protects employees from discrimination based on their “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
Prior to the Maritime decision, Fourth Circuit precedent held that individuals without lawful immigration status lacked standing to bring a claim under Title VII. Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998). A New Jersey court, despite being located in a different circuit, cited this ruling when it dismissed an undocumented immigrant’s claim for lack of standing under state antidiscrimination law. Crespo v. Evergo Corp., 841 A.2d 471, 473-73 (N.J. App. 2004). Courts in New York have reached similar conclusions, although one U.S. district court expressed doubt that the Second Circuit would follow Egbuna in a similar situation. Olvera-Morales v. Sterling Onions, Inc., 322 F.Supp.2d 211, 220 (N.D.N.Y. 2004).