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Ruling in undocumented worker case speaks to broader EEOC power

Ruling in undocumented worker case speaks to broader EEOC power

Jurisdiction issues aside, the Equal Employment Opportunity Commission's successful effort to obtain the authority to subpoena an employer in a discrimination complaint filed by an undocumented worker reflects a broader trend toward courts siding with the EEOC, says an expert.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, reversed a lower court ruling in U.S. Equal Employment Opportunity Commission v. Maritime Autowash Inc. in holding the EEOC had the authority at this early stage of the proceedings to pursue its subpoena.

According to the ruling, Elmer Escalante, an undocumented worker hired as a vacuumer at an Edgewater, Maryland, car wash operated by Millersville, Maryland-based Maritime Autowash Inc. in May 2012, filed a an EEOC complaint against his employer February 2014, charging discrimination on the basis of national origin and retaliation under Title VII of the Civil Rights Act of 1964 in connection with its treatment of Hispanics, according to the April 25 ruling.

The EEOC issued a subpoena and sought the approval of the U.S. District Court in Baltimore to enforce it when Maritime did not respond. The District Court held that because Mr. Escalante was an undocumented worker, he did not have standing to sue Maritime and “thus left no viable basis for his EEOC complaint,” said the ruling.

The trial court erred in refusing to authorize this “very preliminary step,” said a unanimous three-judge panel of the 4th Circuit. “Courts may uphold the agency's subpoena authority without the need to pass on its view of Title VII's coverage of undocumented workers,” said the ruling.

The EEOC's investigation of Mr. Escalante's charges is “at least plausibly and arguably related to the authority that Congress conferred upon the commission,” said the ruling. “This is not a case where the agency went rogue or jumped the tracks and sought to investigate something unrelated to its statutory charge.”

“The particular issue that Maritime presses — whether and to what extent Title VII covers undocumented aliens — is a novel and complex problem especially ill-suited to a premature and absolute pronouncement,” said the court, in remanding the case with instructions that the EEOC's subpoena be enforced.

Paul Starkman, a member of law firm Clark Hill P.L.C. in Chicago, said it is interesting “how broadly many courts have viewed the EEOC's subpoena power.”

The ruling is part of a trend among the courts “to really allow for fairly broad investigations by the EEOC, and the courts that strictly scrutinized requests for information in the subpoena have become more the minority,” Mr. Starkman said.

It used to be there had to be some kind of a charge about a national practice “before the EEOC could do regional or widespread discovery where you only had a single-person charge, but that's becoming more and more the exception,” Mr. Starkman said.

Emily S. Borna, a principal at Jackson Lewis P.C., said the ruling “is in keeping with the more aggressive approach we're seeing from the EEOC to get additional information about similarly situated people when they receive these charges.”

There are millions of undocumented workers in the country, “and it's the EEOC's position that it's a settled principle these workers are covered by the federal discrimination statute, and it's illegal to discriminate against them as it would be to discriminate against other workers,” she said.

She noted the ruling “set out the parade of horribles that could come to be if there were no oversight protections in place” for these workers.

But even if such workers are protected, “it doesn't mean they can't be deported, and arguably this is a factor plaintiff attorneys should consider if they take these cases,” Ms. Borna said.

Mr. Starkman said also that should Mr. Escalante continue to remain the only plaintiff in the case, he ultimately would not be entitled to any monetary relief because he is an undocumented worker, although the EEOC would still be able to obtain injunctive relief in the case.

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