While it may be unlawful to employ illegal immigrants under the Immigration Reform and Control Act (IRCA), that doesn’t mean undocumented employees can’t sue for alleged employment discrimination based on other factors, such as pregnancy.
Federal courts will still entertain discrimination lawsuits, ignoring illegal status. While such employees probably won’t get lost wages (since technically they cannot work legally), they may still be awarded other damages—such as for emotional pain and suffering.
Recent case: Maria Pineda worked for Bath Unlimited through a temporary agency. When she and several other temps were offered permanent jobs with Bath Unlimited, Pineda chose to continue as a temp because she knew she didn’t have legal work papers. Presumably, she feared that the HR office at Bath Unlimited might do a better job screening for legal status than the temp agency did.
Shortly after, Pineda became pregnant and told her supervisor at Bath Unlimited. Two weeks later she was fired without explanation. Pineda went to the EEOC, which asked the company for an explanation. Bath Unlimited told the EEOC that excessive absences were the reason.
Pineda, however, had doctor’s excuses for the absences, which Bath Unlimited had accepted before it knew she was pregnant.
That was enough for the court to order a jury trial, which will focus on, not her illegal status. (Pineda v. Bath Unlimited, No. 06-CV-2328, DC NJ, 2007)