Federal law requires employees to demonstrate eligibility to work in the U.S. as a condition of employment. However, employees determined to be unauthorized may have limited recourse with respect to claims of employment discrimination according to a decision last Monday from the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina).

In EEOC v. Maritime Autowash, Inc., the terminated employee filed a charge of discrimination with the EEOC, alleging national origin discrimination and retaliation. The employer refused to provide a substantive response to the charge, contending that the EEOC has no jurisdiction to investigate the matter because it discovered that the charging party had no valid U.S. work authorization. The district court refused to enforce the EEOC’s subpoena issued to the employer, and the agency appealed the matter to the Fourth Circuit.

The Fourth Circuit reversed the district court, ordering the employer to comply with the EEOC’s administrative subpoena. The Fourth Circuit concluded that any person may file an EEOC charge, and that the agency’s jurisdiction is not limited under Title VII by that person’s work authorization. The court issued a narrow ruling, limited to the EEOC’s power to investigate the charge. It expressed no opinion on whether the EEOC or employee have any viable remedy under Title VII given his immigration status.

Subsequent litigation in this matter may conclude with a determination that neither the employee nor the EEOC can impose any substantive remedy for employment discrimination. However, the Fourth Circuit’s decision bifurcates the administrative process from the litigation one. Defenses used in litigation to claims brought by unauthorized workers do not deprive the EEOC of jurisdiction to conduct its initial administrative review of the claim.