The final clause of section 1 of the fourteenth amendment to the US Constitution states that no State shall deny “to any person within its jurisdiction the equal protection of the laws”. This protection applies to migrants and has prevented state authorities from discriminating against migrants, including discrimination against irregular migrants, for example in relation to education rights (8.4-Rights and Entitlements).

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The final clause of section 1 of the fourteenth amendment to the US Constitution states that no State shall deny “to any person within its jurisdiction the equal protection of the laws”. This protection applies to migrants and has prevented state authorities from discriminating against migrants, including discrimination against irregular migrants, for example in relation to education rights (8.4-Rights and Entitlements).

The Civil Rights Act of 1964 prohibits discrimination in employment on the grounds of race, color, religion, sex, or national origin under section 703. Employers discriminate under the Act when they fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment. The Act is not limited to nationals of the US so would therefore include protection for migrant workers. The Act also prohibits disparate impact of policies under section 703(k), on the same grounds, when a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.

The Equal Employment Opportunities Commission (EEOC) was set up under section 705 of the Act. Section 706 of the Act sets out the powers of the EEOC, which include: to prevent any person from engaging in any unlawful employment practice as set forth in the Act; to serve notices of the charge on the alleged discriminator and make the necessary investigations; if the Commission finds that discrimination did occur they shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Under section 706 (f) the EEOC may take civil action against respondents if they fail to secure an agreement with them. Under section 706 (d) the Court may, if the discrimination is found to be intentional, order such appropriate affirmative action, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay or any other equitable relief as the court deems appropriate. In 1999 the EEOC issued guidance on undocumented migrant workers. The guidance argues that undocumented workers are entitled to the same protection under the Civil Rights Act 1964 as other workers and should therefore be entitled to the same remedies. They stated that if employers were not held responsible for discriminating against unauthorized workers, it would create an incentive for unscrupulous employers to employ and exploit these workers which would directly undermine the enforcement of the immigration laws by encouraging the employment of unauthorized workers. It would also harm authorized workers who might be denied these jobs or be subjected to a workplace which tolerated discrimination.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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