When the EEOC started investigating a class action sexual harassment lawsuit against Glenview Car Wash (GCW) in suburban Chicago, counsel for GCW noticed some deficiencies in its personnel files. GCW then began asking its employees to fill out I-9 forms--the documents that show employees are legally authorized to work in the U.S. It was the first time in 17 years that the company had updated its I-9s.
Judge Ronald Guzman of the Northern District of Illinois wasn't impressed with GCW's newfound piety. At the EEOC's request, he issued an order May 5 that barred the company from making any further inquiries into employees' immigration status during the harassment case. "[The court does not] find it convincing that the only motive for requesting immigration status information is the employer's sudden desire to be in compliance with...the immigration laws," he wrote. "Rather the court finds that the main purpose...is to effect a not so subtle intimidation of the plaintiffs."
The order puts GCW in a bind between a court order that tells them to do one thing, and a federal law that requires them to do another.
"We informed the court of this conflict," says Peter Andjelkovich, counsel for GCW. "If they comply with the order, they are in dereliction of their duties under the immigration laws."
Judge Guzman's order highlights an essential tension between immigration law and employment law.
Courts have long held that all employees, documented to work in the U.S. or not, are entitled to the protections of Title VII and other workplace laws. The logic is that employers should not escape liability for violations of employment laws simply because they violated immigration laws by hiring illegal workers. Yet, in some instances, allowing undocumented employees to enforce their rights under those laws seemingly runs afoul of federal immigration policy.
That tension was crystallized in the 2002 case Hoffman v. NLRB, in which the Supreme Court held that undocumented workers weren't entitled to collect back pay damages under the NLRA. Since that ruling, employers have tried to assert Hoffman as a shield from suits undocumented employees have brought. But courts have limited Hoffman's applicability, especially in those instances when fear of sudden enforcement of immigration laws could prevent employees from exercising their rights.
"Courts are concerned with the chilling effect this kind of inquiry could have on people being willing to come forward on legitimate charges," says Ethan Cohen, the EEOC trial attorney in EEOC v. Glenview Car Wash.
Furthermore, he says, employers can easily avoid conflicts such as the one in which GCW found itself.
"Employers are supposed to comply with immigration laws at the time they make a hire," he says. "In the midst of a Title VII case is not the time to inquire into immigration status."
Being in compliance with the immigration laws from the outset may indeed be the most important lesson for an employer to take away from GCW's predicament.Not only will doing so help an employer avoid a conflict such as the one in which GCW is now stuck, but it also will help employers avoid the serious liabilities associated with hiring illegal workers in the first place. The Immigration Reform and Control Act of 1986 provides harsh penalties--up to $1,000 per employee for which the employer does not have an I-9 on file plus additional civil and criminal penalties for substantial violations.
Finally, when facing a lawsuit in which immigration issues are implicated, employers must remember courts are concerned with not creating incentives for employers to hire illegal aliens.
"By not letting employers use immigration laws to deter employees from exercising their rights under Title VII, we take away the incentive to hire undocumented workers--the employer's belief that these people will be more compliant and unlikely to complain," Cohen says.