Fired Undocumented Worker Who Subsequently Obtained Work Authorization May Pursue Reinstatement And Front Pay Under Title VII

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

FIRED UNDOCUMENTED WORKER WHO SUBSEQUENTLY OBTAINED WORK AUTHORIZATION MAY PURSUE REINSTATEMENT AND FRONT PAY UNDER TITLE VII
Immigrants' Rights Update, Vol. 17, No. 6, October 21, 2003

A federal district court judge in Texas has refused to dismiss an action brought by a worker who was undocumented at the time that he was subjected to sexual harassment and fired by his employer in violation of Title VII of the Civil Rights Act (Title VII), but who subsequently obtained work authorization. The court determined that, though the worker was barred from receiving back pay as a remedy for having been fired unlawfully, he was not foreclosed from pursuing other remedies, including reinstatement and front pay.

Enrique Escobar was employed as a security guard for Spartan Security Service from January to July 2001. Escobar alleged that Spartan Security's president sexually harassed him and that he was fired after he rebuffed his superior's advances. Escobar became authorized to work in the United States before he filed an action against Spartan Security in federal court. Relying on Hoffman Plastic Compounds v. NLRB, 122 S.Ct. 1275 (2002), and Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998), cert. denied, 119 S.Ct. 1034 (1999), the employer sought to dismiss the entire action on the grounds that Escobar's undocumented status at the time of the alleged violations barred him from all relief.

In Egbuna, the Fourth Circuit Court of Appeals held that an undocumented plaintiff who alleged that he was unlawfully denied employment did not have standing to file an action under Title VII, because an unauthorized worker is not a "qualified" applicant. In Hoffman Plastic Compounds, the Supreme Court held that an undocumented worker is not entitled to back pay, a remedy that is available under the National Labor Relations Act (NLRA). (For a summary of the Hoffman decision, see "Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing," IMMIGRANTS' RIGHTS UPDATE, Apr. 12, 2002, p. 10)

In refusing to dismiss Escobar's lawsuit, the federal court in Texas reasoned that Hoffman "did not specifically foreclose all remedies for undocumented workers under either the NLRA or other comparable federal labor statutes, and did not . . . foreclose remedies for workers who have subsequently attained legal work status." Similarly, because Escobar is now a documented worker, the logic of Egbuna does not apply to his case.

Escobar v. Spartan Security Service, __ F. Supp.2d __, 2003
WL 22129459 (S.D. Tex. July 30, 2003).