Employment Authorization, Alienage Discrimination and Executive Authority

Abstract

Undocumented individuals with deferred action find themselves in a kafkaesque position, and neither scholars nor courts have persuasively addressed how their liminal immigration status affects their rights in the workplace. Many begin with the intuitive assumption that immigration and employment law are in a fundamental and unresolvable tension with each other. On one hand, anti-discrimination principles protect noncitizens from alienage discrimination in the workplace. On the other hand, Congress enacted employer sanctions precisely to keep undocumented noncitizens out of the workplace. In the face of this dilemma, the default approach is to conclude without analysis that employers (and states) must be able to deny rights and benefits to undocumented noncitizens. This creates a true dilemma for the employment-authorized undocumented worker, and challenges the federal government’s acknowledged power to authorize employment for noncitizens. In this Article, I argue that employment-authorized undocumented workers are protected from workplace discrimination even though they do not have legal status in the eyes of immigration law. If a purpose of employment law is to balance the “inherent inequality of bargaining power between employer and employee,” then employment authorization should offer protections that achieve bargaining equality, including protections for undocumented immigrants against discrimination based on their foreign-born status. On the other hand, in an increasingly anxious society concerned with growing numbers of undocumented noncitizens, the urge to limit rights and benefits that come with liminal immigration status such as deferred action is heightened. Recent Supreme Court holdings, both in and outside the immigration arena, however, support an evolving theory of workplace protection for workers in liminal immigration categories. I draw from these cases to suggest the revival of a theory that fuses liberty and equality principles with federalism and structuralism to protect noncitizens as historically disadvantaged groups. Toward this end, I explore three concepts – employment authorization, executive authority and alienage nondiscrimination principles – that together provide the foundation for protecting the employment authorized undocumented worker.