February 1, 2016

In our July 2007 newsletter, I wrote about the government’s increased crack-down on illegal aliens and the employers who employ them. You may think that employers of illegals are immune from lawsuits filed by illegals for race, national origin, or any other kind of workplace discrimination. Wrong. As a recent Title VII sex harassment case illustrates, undocumented workers are covered by the federal employment discrimination statutes and it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work in the United States.

The Torres Case Against Perkins Restaurant – Food For Thought

In a recent United States District Court case in Minnesota, Maria Torres and the U.S. Equal Employment Opportunity Commission sued Perkins Restaurants for sexual harassment and retaliatory discharge. Torres, a cook, claimed that kitchen manager Centano made sexual comments to her, rubbed up against her, and came to her house uninvited. She claimed that when she refused Centano’s advances, he began treating her less favorably than other workers and threatened to report her to the immigration authorities for being an undocumented alien. Torres eventually complained to senior management about the harassment and explained that Centano threatened to have her deported.

Perkins investigated Torres’ complaints. Perkins decided that Centano should get a written warning. It also decided to call the Social Security Administration, which reported that Torres’ name did not match her social security number. Perkins told Torres it no longer could employ her and that she could come back to work when she had proper documentation. Torres sued Perkins for sexual harassment and for retaliatory discharge. In its defense, Perkins argued that because the Immigration Reform and Control Act compels an employer to discharge employees upon discovery of their undocumented status, Torres was not an “employee” protected under Title VII. Perkins also argued that even if Torres is protected, she can’t be awarded lost wages because she was not entitled to them anyway (remember, she was here illegally). The court rejected Perkins’ position, stating that its argument would incentivize employers to hire undocumented workers because of their inability to enforce workplace rights available to documented workers.

Worker’s Compensation Cases

What about worker’s compensation benefits? The Illinois Workers’ Compensation Act provides that “aliens” are covered employees, but does not address whether or not illegal status exempts the “alien” from coverage. However, the Workers’ Compensation Commission deems undocumented aliens to be covered by the Act and able to collect worker’s compensation benefits.