It is often said that undocumented workers in this country “live in the shadows.” They’re typically here for a reason: to make a better living for themselves and their families. But in doing that, they’ve risked violating United States law. They work in a wide variety of jobs, notably making up significant proportions of the employment base in industries like farming, cleaning and maintenance, and construction. Yet, undocumented workers live with a constant threat that some day they will be discovered and forced to leave this country. For this reason, they may be hesitant to speak up for themselves. Others may try to take advantage of their status, using it as a threat against undocumented workers in order to keep them from reporting illegal activity. In the employment world, one of the many concerns is that an employer may get the benefit of an undocumented worker’s labor but abuse their position and the worker’s status to justify unfair or even illegal treatment.

In today’s posting, we’ll talk about the legal rights of undocumented workers in fighting against discrimination at their job. We’ll also touch on the risks workers take if they raise the issue with the government or in court and the protections that are in place for them. If you believe you’re being discriminated against at work, no matter what your immigration or citizenship status, contact Eisenberg & Baum. Our employment lawyers have years of experience handling discrimination claims and can help you better understand your rights and remedies as a victim of discrimination.

Are Undocumented Workers Protected by Anti-Discrimination Laws?

We’ve talked a lot on our blog about the various anti-discrimination laws that protect employees from discrimination based on a wide variety of characteristics, including gender, age, race, religion and national origin. Federal laws prohibiting employment discrimination include Title VII of the 1964 Civil Rights Act, the Americans With Disabilities Act (ADA), and the Age Discrimination in Employment Act. Many states have their own employment discrimination laws as well, like New York State’s Human Rights Law. These laws generally make it illegal for an employer in the United States to treat an employee differently at work because of a protected trait. To learn more about the types of traits that are protected from discrimination, read our previous blog post entitled, “The Elements of an Employment Discrimination Claim in New York.”

Federal and State Discrimination Laws

Federal laws and New York State laws prohibiting discrimination generally extend to undocumented workers.

The Equal Employment Opportunity Commission (the EEOC), which is the federal agency in charge of enforcing laws like Title VII and the ADA, has made it clear that federal anti-discrimination laws apply to all employees in the United States, including those who may not be legally authorized to work here. There can be limits to the types of damages an undocumented worker can recover, at least under federal law, but generally undocumented workers have the same legal options for filing a discrimination claim as any other worker in this country.

Without this protection, employers, managers and fellow workers could take advantage of undocumented workers in ways that would be illegal if the worker were authorized to work in the U.S. Undocumented workers would be left with no ability to defend themselves against racial slurs, sexual harassment and other types of behavior the United States decided long ago do not belong in the workplace. Applying anti-discrimination laws equally to both authorized and unauthorized workers can also help remove any incentive an employer might have to hire unauthorized workers over their authorized counterparts in order to avoid legal oversight.

Is It Discrimination If An Employer Does Not Hire An Applicant Because They’re Undocumented?

Though anti-discrimination laws generally apply to undocumented workers, and many of those laws including Title VII prohibit discrimination against an employee based on their national origin, an employer may still refuse to hire a candidate or terminate an employee it discovers is not authorized to work in the United States. Immigration laws prohibit employers from knowingly employing unauthorized workers and can carry criminal sanctions for employers. Refusing to hire an applicant because they are not legally authorized to work in this country is distinct from refusing to hire an applicant because they were originally born in another country.

What Risks Do Undocumented Workers Face When Filing a Discrimination Complaint?

While the law may prohibit discrimination against undocumented workers to the same extent as authorized workers, undocumented workers may still have very important concerns about coming forward with their complaint. If they file a complaint with the EEOC or a lawsuit, will their employer or some government authority report them to the United States Bureau of Immigration and Customs Enforcement (ICE), ultimately leading to their removal from the country?

There are no express guarantees for undocumented workers under the law. However, anti-discrimination laws do typically protect employees against retaliation by their employers and ICE has indicated in its own guidance that it does not want to get involved in employment disputes. Many of the same laws that protect individuals from workplace discrimination also protect employees from retaliation for opposing unlawful discrimination. This protection extends to employees who report the alleged discrimination as well as employees who simply participated in a discrimination investigation. If an employer reports or threatens to report an employee to ICE because the employee opposed workplace discrimination, the employer has likely violated the law.

ICE is also aware that employers might use an employee’s immigration status against them if they complain about discrimination or other illegal treatment at work. As part of its Special Agents Field Manual, ICE cautions its officials to beware of reports of unauthorized workers that could get the ICE involved in labor disputes like discrimination claims. Agents are instructed not to take action on reports that appear to be made in an attempt to squash a complaint or retaliate against an employee for exercising their legal rights without higher level review and approval.

Get Legal Help

If you’re an undocumented worker facing discrimination at work, we recommend contacting an attorney as soon as possible. An experienced attorney can help guide you through the legal hurdles and concerns that you may face, and will advise you on the best way forward to address the discrimination you’re facing while at the same time protecting you against r
etaliation from your employer.

Contact Eisenberg & Baum for a free initial consultation on your case. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are. In discrimination and retaliation cases, we offer free initial consultations and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.