Why Protect Unauthorized Workers? Imperfect Proxies, Unaccountable Employers, and Antidiscrimination Law's Failures

Abstract

This article explores a gap in the scholarship regarding the unauthorized workplace. It describes and names the two main justifications on which advocates and courts have relied to extend federal antidiscrimination protections to unauthorized workers. First, the proxy justification insists that workplace protections must include unauthorized workers because their protection is necessary to protect U.S. citizen and authorized workers. Second, the deterrence/accountability justification states that workplace protections must include unauthorized workers because it will deter employers from future violations of antidiscrimination laws and hold them accountable for violations of immigration law. While these justifications have led to some protection for workers, especially under federal antidiscrimination laws, unauthorized workers have still found themselves without full remedy. The existing scholarship attributes this to the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB and its emphasis on the Immigration Reform and Control Act of 1986 (IRCA)’s prohibition on hiring unauthorized workers.

This article argues that attributing the lack of full remedy solely to Hoffman is an incomplete account. It ignores the role that antidiscrimination law’s two primary, normative principles play in the justification’s limitations. First, anticlassification’s status-neutral and individually-focused principles exacerbate the stereotyping effects of the proxy justification, which results in limited access to remedies and misapplication of legal doctrines. Antisubordination also fails to achieve full protection for unauthorized workers. It can be difficult to get buy-in to the idea that workers who are unauthorized should be protected because antisubordination principles, unlike anticlassification principles, do not protect all workers regardless of status. Its historical reliance on immutability also means that courts and some policy makers may resist protecting unauthorized workers because they view immigration status as changeable. This also can lead to further stereotyping. Accordingly a fuller account of the unauthorized workplace shows that the proxy and accountability/deterrence justifications’ failure to fully protect unauthorized workers is not only the result of IRCA and immigration policy. The drawbacks of anticlassification and antisubordination principles lead to less robust protections for unauthorized workers, too.

Keywords: Workplace Law, Immigration Law, Employment Discrimination