Courts have typically analyzed the availability of back pay to undocumented workers under Title VII by looking at decisions made in the context of the NLRA because of the similarity of the Acts’ remedial schemes. However, courts have considerably more discretion in fashioning remedies under Title VII than under the NLRA.

The few courts that have addressed the issue of whether undocumented workers can sustain a claim under Title VII after the IRCA’s passage have reached inconsistent results. In EEOC v. Tortilleria “La Mejor,” the United States District Court for the Eastern District of California, the first court to address this issue, began by analyzing whether undocumented workers were “employees” within the Act’s meaning. The court determined that because Title VII specifically exempted workers employed outside the United States, it implicitly included those employed within the United States. The court then turned to the question of whether the IRCA affected the undocumented workers’ rights under Title VII. The court determined that Title VII uniformly applied to undocumented and legal workers alike because if it did not, employers would have an economic incentive to hire undocumented workers in violation of the IRCA.

In Egbuna v. Time-Life Libraries, Inc., the Fourth Circuit Court of Appeals addressed the issue in the context of a claim of retaliatory discrimination. In Egbuna, Time-Life Libraries hired Obiora Egbuna, a Nigerian citizen with a valid work visa, but refused to rehire him after he resigned. Mr. Egbuna claimed that the company refused to rehire him in retaliation for having corroborated testimony in a co-worker’s sexual discrimination suit during his previous employment. He claimed that the company had violated the anti-retaliation provision of Title VII. Time-Life Libraries was not aware that Mr. Egbuna’s work visa had expired and that he was no longer legally authorized to work when it refused to rehire him.

The Fourth Circuit Court of Appeals began its analysis by stating that a Title VII claimant must first show that he was qualified for employment. The court concluded that undocumented workers are not entitled to protection under Title VII because the IRCA prohibits their employment.

The dissent criticized the majority opinion for ignoring the employer’s motive, an issue that the Supreme Court in McKennon had held relevant to the determination of an employer’s liability, irrespective of the employee’s qualification to work. The dissent said that the employee’s qualifications to work were relevant only to the issue of remedies, not liability, which should turn on the employer’s discriminatory motive. Additionally, the dissent argued that by immunizing employers who violate the IRCA from liability under Title VII, the majority undermined the IRCA’s purpose in deterring illegal immigration by giving such employers an economic incentive to hire undocumented workers. The dissent noted that relieving employers of their obligations under Title VII with respect to undocumented workers may “reach[] beyond” Title VII, and nullify undocumented workers’ rights under other federal laws, such as the Americans with Disabilities Act and the Age Discrimination in Employment Act of 1967.

The difference between the Fourth Circuit Court of Appeal’s opinion in Egbuna and the Supreme Court’s opinion in Hoffman Plastic Compounds, Inc. bears on the availability of Title VII protection to undocumented workers. In Egbuna, the Fourth Circuit Court of Appeals conflated the issues of liability and remedy and determined that undocumented workers were not “employees” within Title VII’s meaning. Conversely, the Supreme Court in Hoffman Plastic Compounds, Inc. held that undocumented workers were entitled to some of the protections of the NLRA but could not receive the very specific remedy of back pay.

Hoffman Plastic Compounds, Inc. is unlikely to affect the availability of back pay under Title VII for two reasons. First, Congress intended Title VII’s remedial scheme primarily to deter employment discrimination rather than to compensate harmed employees. Conversely, eliminating discrimination on the basis of union support is a secondary goal of the NLRA that effectuates the Act’s primary goal of protecting workers’ rights to join unions and engage in collective bargaining. Thus, back pay may be available under Title VII because the prohibition of discriminatory discharge is more central to Title VII than to the NLRA and may therefore outweigh the competing consideration that awarding back pay to an IRCA violator rewards his misconduct. A court may thus compensate a discriminatee by balancing the employee’s misconduct against Title VII’s public purpose of eliminating employment discrimination, as the Supreme Court did in McKennon.

Second, Hoffman Plastic Compounds, Inc. only precludes undocumented workers from receiving the specific remedy of back pay. Therefore, Title VII’s wider array of remedial options are probably still available to undocumented workers. Front pay, for example, would be an appropriate remedy under Title VII if reinstatement would violate the IRCA’s prohibition of the employment of undocumented workers.


The United States workforce currently includes millions of undocumented workers. These workers often lack practical access to the federal laws that protect them because fear of retaliation inhibits them from asserting their rights. Undocumented workers typically earn far less than federal law requires employers to pay them, and the Department of Labor lacks the resources to effectively enforce the FLSA’s requirements. Thus, exploitation often goes unchecked.