Donald Livingston Quoted in Daily Labor Report on Title VII Rights for Undocumented Workers

Akin Gump’s Donald Livingston, a partner in the firm’s labor and employment practice, has been quoted in the Daily Labor Report article “Are There Limits on Undocumented Workers’ Title VII Rights?” The article notes that workers who are in the United States illegally are generally protected under federal job bias laws, but maybe only after they have been hired and possibly not from all forms of discrimination.

In fact, Livingston said undocumented workers may only be covered under Title VII (of the Civil Rights Act of 1964) while actually working for an employer. According to a ruling by the U.S. Court of Appeals for the 4th Circuit, he said employers cannot be held liable for refusing to hire someone who is not authorized to work in the United States. He continued, by stating that could also extend to wrongful terminations, which are essentially equivalent to refusals to hire because the both involve a “failure to employ.” Livingston represented the employer in the case, Egbuna v. Time-Life Libraries, Inc.

Livingston also addressed the case EEOC v. Maritime Autowash Inc., in which it was alleged that a car wash in Maryland subjected its Hispanic workers to unequal treatment based on national origin, including longer hours, shorter breaks and lower wages. Livingston said unlike Egbuna, this case, which seeks redress for “discriminatory conduct during actual employment is potentially a different matter.” For that reason, he doesn’t think Egbuna “provides a great deal of comfort to employers” who are illegally hiring undocumented workers and then exploiting them further by subjecting them to discrimination.

Livingston said the judges who wrote the majority and concurring opinions in the Maritime case recognize the same principle. As the concurring judge expressly states, “the scope of Egbuna has not been fully delineated,” Livingston said.