Ebguna v. Time-Life Libraries, Inc. Petition for Writ of Certiorarig
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January 1, 1998

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Brief Collection, LDF Court Filings. Ebguna v. Time-Life Libraries, Inc. Petition for Writ of Certiorarig, 1998. 090850b7-b09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f68a7bc1-aa2e-400d-8663-36eda2c896e3/ebguna-v-time-life-libraries-inc-petition-for-writ-of-certiorarig. Accessed June 13, 2025.
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In The (&smvt uf % lurtrit &taiea October T erm , 1998 Obiora E. E gbuna, Petitioner, v. T im e-Life Libraries, Inc ., Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITION FOR WRIT OF CERTIORARI John P. Eacin Marsha S. Berzon Weissbrodt & Racin Michael Rubin 1721 Lamont Street, N.W. Washington, D.C. 20010 (202) 265-2516 N ina J. Ginsberg Dimuro, Ginsberg & Lieberman 908 King Street, Suite 200 Alexandria, YA 22314 (703) 684-4333 (Counsel of Record) Kathleen Morris Altshuler, Berzon, Nussbaum, Berzon & Rubin 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 Attorneys for Petitioner W il s o n - E p e s P r in t in g C o . , In c . - 7 8 9 - 0 0 9 6 - W a s h in g t o n , D .C . 2 0 0 0 1 QUESTIONS PRESENTED 1. Did the Immigration Reform and Control Act of 1986 strip undocumented workers of their right as “in dividuals” to protection under Title VII of the Civil Rights Act of 1964? 2. Under McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), may a prospective employee be precluded from bringing a case for discriminatory refusal to hire on the basis of a qualification-for-employ- ment issue that the employer did not take into account in making its hiring decision? (i) PARTIES All parties are identified in the caption of this case. IX TABLE OF CONTENTS Page QUESTIONS PRESENTED.... ........ i PARTIES.................................. .......................................... ii TABLE OF AUTHORITIES ......................... iv OPINIONS BELOW .............................................................. 1 JURISDICTION ...................................................................... 1 STATUTES INVOLVED...... ........ 2 STATEMENT OF THE CASE.... ................... ................ 2 FACTS.............................. 2 REASONS FOR GRANTING THE PETITION............ 8 I. The Fourth Circuit’s Conclusion That Undocu mented Workers Are Not Covered by Title VII Is Contrary to the Plain Statutory Language and Legislative Purposes of Both Title VII and IRCA, and to Decisions of This Court and Every Circuit Court To Consider IRCA’s Impact on the Federal Employment Law Rights of Undocumented W orkers........................................ 9 II. The Fourth Circuit’s Reliance on the Employ er’s After-Acquired Evidence of Petitioner’s Undocumented Immigration Status Is Contrary to McKennon and McDonnell Douglas, to Deci sions of Several Circuit Courts, and to Title VII’s Underlying Antidiscrimination Policies.... 19 CONCLUSION................................ .............................. . 30 (iii) CASES TABLE OF AUTHORITIES Page Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)........................................... ........................... 10 DeCanas v. Bica, 424 U.S. 351 (1976) _______ 14 Del Rey Tortilleria v. NLRB, 976 F,2d 1115 (7th Cir. 1992) _________ ___ _____ ___ ___ ___ passim EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989)......... ................................... ................ - ....... 11 Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) ....... ............... ........... ....... ... ........... .....passim Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).... 10 Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) ........................................................ .. 10 Furnco Corporation v. Waters, 438 U.S. 567 (1978)........ ...... ............... ........................... -----.... 19, 23 Gilty v. Village of Oak Park, 919 F.2d 1247 (7th Cir. 1990) ............... ............... ............ .................. passim King v. Stanislaus Consol. Fire Protection Dist., 985 F. Supp. 1228 (E.D. Cal. 1997)________ - 20, 26 Kristufek v. Hussmann Foodservice Co., 985 F.2d 364 (7th Cir. 1993) ...................... ............ ........... 20 Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221 (3d Cir. 1994), vacated, 115 S. Ct. 1397, re affirmed and reinstated on remand, 65 F.3d 1072 (3d Cir. 1995) ....... ............................ ............... ...passim McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) _________ ______ ___ _____ _________ passim McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) .............. ........ ............... ..... passim NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997) —..................................... passim NLRB v. Ashkenazy Property Management Corp., 817 F.2d 74 (9th Cir. 1987) _____________ ___ 9,18 NLRB v. Future Ambulette, Inc., 903 F.2d 140 (2d Cir. 1990) ......................... ............... ... ................... 29 Northeastern Florida Contractors v. Jacksonville, 508 U.S, 656 (1993).......................................... . 26 Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988), cert, denied, 489 U.S. 1011 (1989) ....passim Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)............................................................. ........ 24, 27 TABLE OF AUTHORITIES—Continued Page Regents of the University of California v. Bakke, 438 U.S. 265 (1978) .................. ..... ............... ...... 26 Rios v. Steamfitters Local 638, 860 F.2d 1168 (2d Cir. 1988)........... .................................... ............... 11 Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106 (5th Cir. 1995) ............... ........... ......................... 21 Benner v. Northcentral Technical College, 113 F,3d 750 (7th Cir. 1997).... ....... .......................... ........ 20, 26 Smith v. General Scanning, Inc., 876 F,2d 1315 (7th Cir. 1989) ... ....................... ................... ..... 20 Smith v. Secretary of the Navy, 659 F.2d 1113 (D.C. Cir. 1981) ................................................... 21, 22 Southern S.S. Co. v. NLRB, 316 U.S. 31 (1942).... 17 St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)................................................... ................... 23 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).......passim Teamsters v. United States, 431 U.S. 324 (1977).. 19,24 Texas Department of Community Affairs v. Bur- dine, 450 U.S. 248 (1981)......... ................... ....... 23, 24 U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983) .................. ........................... 23, 24 Wallace v. Dunn Construction Co., 62 F.3d 374 (11th Cir. 1995) ................................................... 21 STATUTES 8 U.S.C. § 1324a....... ........... 8 U.S.C. § 1324c........... ....... 28 U.S.C § 1254(a)............. 29 U.S.C. §158 (a) (3 )____ 42 U.S.C. § 1981a (b ) ........... 42 U.S.C. § 2000e(f) ........... 42 U.S.C. § 2000e~l.............. 42 U.S.C. §2000e-2.............. 42 U.S.C. § 2000e-3............. 42 U.S.C. § 2000e-5 ............. . 8C.F.R. § 208.7(a)______ 8 C.F.R. § 274a.2 (b)(1) (ii) 29 C.F.R. § 1606.1c)............ .passim 4 2 11 27 10 10 . 10,22 passim 22 6 3 12 vi TABLE OF AUTHORITIES—Continued LEGISLATIVE HISTORY Page H.R. Rep. No. 88-914, 88th Cong., 2d Sess. (1964).. 11 H.R. Rep. No. 102-40(1), 102nd Cong., 1st Sess. (1991)... ........... ..................... ..... ........................... 27 H.R. Rep. No. 99-682 (1986) ........................... ........ 8,13 PUBLICATIONS EEOC Compliance Manual If 3806 (1982).............. . 12 EEOC Compliance Manual If 3815 (1989)_____ 9,12,14 I n The fttpratt? (tort of % Inti?b States October T erm , 1998 No. Obiora E. Egbuna, Petitioner,v. T im e-Life L ibraries, Inc ., ________ Respondent, On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit fPETITION FOR WRIT OF CERTIORARI Petitioner Obiora E. Egbuna, the plaintiff in the district court and the appellant in the court of appeals, respect fully petitions for a writ of certiorari to review the judg ment of the United States Court of Appeals for the Fourth Circuit sitting en banc in Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998). OPINIONS BELOW The en banc opinion of the U.S. Court of Appeals for the Fourth Circuit is reported at 153 F.3d 184 and is reprinted in Appendix A to this Petition, at la-12a. The earlier panel decision is reported at 95 F.3d 353 and is reprinted in Appendix B, at 13a-21a. The district court’s Memorandum Opinion of July 28, 1995, granting sum mary judgment to respondent Time-Life Libraries, Inc. is not reported and is reprinted in Appendix C, at 22a-24a. JURISDICTION The en banc opinion of the U.S. Court of Appeals for the Fourth Circuit was filed on August 19, 1998. On November 6, 1998, this Court granted petitioner until 2 December 7, 1998 to file this petition. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(a). STATUTES INVOLVED The following statutes are involved in this case: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-3(a), and the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324a. The pertinent text of those statutes is set forth in Appendix E at 26a-31a. STATEMENT OF THE CASE Contrary to several decisions of this Court and at least four other circuits, the Fourth Circuit sitting en banc in this case ruled that Title VII does not cover workers who lack employment authorization under the Immigration Reform and Control Act of 1986 (“IRCA”), 8 U.S.C. § 1324a. By granting summary judgment against peti tioner Obiora Egbuna because of his undocumented im migration status—a status not taken into account by his employer when it allegedly discriminated against him—the Fourth Circuit exceeded the limited role of after-acquired evidence recognized in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), misconstrued the import of a prima facie case of discrimination under Mc Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973), particularly with respect to the notion of what it means to be “qualified” for employment, and resolved what it perceived to be a tension between federal immigration policy and federal antidiscrimination policy by undermin ing both the immigration policy of discouraging employ ment of undocumented workers and the Title VII policy of eliminating discriminatory employment practices. FACTS Obiora Egbuna, a Nigerian national who is now a permanent resident alien (Pet. App. 2a, 4a n.4), began working for respondent Time-Life Libraries, Inc. (“TLLI”) as a sales representative in June 1989. Pet. App. 2a; 3 Jt. App. 44, 84 f 2.1 Although Egbuna had a valid student work visa when hired, that visa authorized him to work in this country only until December 1989, a limitation clearly marked on the Employment Eligibility Verification Form 1-9 documents that he submitted to TLLI upon starting work. Pet. App. 2a; Jt. App. 8 (June 8, 1989 1-9 Form), 72, 84-85 % 3. Petitioner remained employed by TLLI until April 1993 despite the expira tion of his student work visa, receiving excellent perform ance evaluations and two promotions into management positions. Jt. App. 22-23, 85-56 f f 4-5. Section 274 of IRC A makes it unlawful for an em ployer to hire an alien whom the employer knows does not have proper work authorization, 8 U.S.C. § 1324a (a )(1 ). In making the work authorization determination, employers are required “within three business days of the hire” to obtain a signed Form 1-9 from the employee and to confirm that the employee has facially valid documents establishing identity and work authorization. 8 U.S.C. § 1324a(b)(l); 8 C.F.R. § 274a.2(b) (1 ) ( ii) ; see also Jt. App. 79-80 3-5 (TLLI abides by the three-day rule). IRC A also makes it unlawful for an employer to “continue to employ” an alien “knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8 U.S.C. § 1324a(a) (2). Thus, if an employer knows that an employee’s work authorization has expired, “the employer . . . must update the Form 1-9 to reflect that the individual is still authorized to work in the United States; otherwise the individual may no longer be employed.” 8 C.F.R. § 274a-2(b) (1) (vii). Employers who violate the work authorization provi sions of IRCA are subject to “employer sanctions”—esca lating civil penalties beginning at $250 per violation. 8 U.S.C. § 1324a(e) (4). Criminal penalties may also be imposed if the employer is found to have engaged in a pattern or practice of violations. 8 U.S.C. § 1324a(f)(l). IRCA does not impose any civil or criminal liability upon l l “Pet. App.” refers to the. Appendix attached hereto. “Jt. App,” refers to the parties’ Joint Appendix to the Fourth Circuit. 4 the alien worker who accepts or continues employment without proper work authorization, unless that worker has engaged in document fraud with respect to the Form 1-9 submission (8 U.S.C. § 1324c), a circumstance not pres ent in this case. In early 1993, after Egbuna had become a sales team manager at TLLI, one of his supervisees, Harrison Jack- son, complained to him about another supervisor’s sexual harassment. Pet. App. 2a. When TLLI investigated Jack son’s allegations in response to a charge filed with the EEOC, petitioner corroborated many of Jackson’s allega tions. Pet. App. 3a. In April 1993, Egbuna voluntarily resigned from TLLI with the intention of returning to his family home. Pet. App. 3a. Political turmoil in Nigeria caused his plans to change, however (Jt. App. 21-23, 86 f 7), and in June 1993 petitioner applied for reemployment at TLLI. Pet. App. 3a. On July 21, 1993, TLLI rejected petitioner’s request for re-employment and informed petitioner that he could not return to work at the company. Id. Egbuna’s contention in this case is that the rejection was in retalia tion for his support of Jackson’s harassment charges.2 TLLI did not ask Egbuna to submit new work authori zation documents in conjunction with his June 1993 application for reemployment, nor was TLLI required to request those documents at the pre-hire stage. See supra at 3. In fact, Egbuna did not have work authorization in June or July 1993—as TLLI learned at petitioner’s April 1995 deposition. See Jt. App. 73-75. On Decem ber 2, 1993, however, five months after being rejected for re-employment, petitioner obtained work authorization upon filing an application for political asylum with the 2 On summary judgment, TLLI acknowledged that its decision not to rehire Egbuna was for reasons connected to Jackson’s harass ment charges, alleging that its decision was motivated by petition er’s failure to report Jackson’s allegations to the company’s Human Resources Department as required by company policy, an assertion petitioner disputed. Pet. App. 2a-3a, 14a. 5 Immigration and Naturalization Service (“INS”). Pet. App. 4a n.4; Jt. App. 73-74, 86 f 7. On February 10, 1995, petitioner brought suit in the Eastern District of Virginia, alleging that TLLI had vio lated the anti-retaliation provisions of Title VII, 42 U.S.C. § 2000e-3(a), by refusing to rehire him because he had supported Harrison Jackson’s sexual harassment charges. Pet. App. 2a-3a. Petitioner sought back pay, compensa tory damages for emotional distress, punitive damages, and reinstatement. TLLI moved for summary judgment based on petition er’s deposition testimony that he did not have proper work authorization in July 1993. Notably, TLLI did not con tend that Egbuna’s immigration status actually played any role in its refusal to re-hire. Rather, TLLI argued that petitioner’s lack of work authorization precluded him from establishing a prima facie case of liability under Title VII as a matter of law, because petitioner could not establish that he “qualified” for employment within the meaning of McDonnell Douglas. Pet. App. 3a-4a. On July 28, 1995, the district court (Bryan, Jr., J.) granted TLLI’s motion for summary judgment, holding that McDonnell Douglas required petitioner to show, as a minimum requirement for establishing a prima facie case of discrimination, that he was “qualified” for the position he sought—in the sense of being legally qualified: In order to maintain this action plaintiff would have to show that at the time he was not rehired, he was qualified to perform the position for which he sought employment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This plaintiff cannot do be cause at that time he, as a foreign national, did not have an employment authorization card, a “green card.” Pet. App. 23a-42a. Egbuna appealed to the Fourth Circuit, which reversed the district court’s entry of summary judgment. See App. 6 B. Applying the plain language of Title VII (which ex tends coverage to all “individuals” without distinguishing based upon immigration status), and analyzing the lan guage and legislative history of IRCA, the panel held that a Title VII plaintiff’s lack of work authorization would only be relevant: 1) if it were a reason in fact for the employer’s challenged employment decision; or 2) in de termining the proper remedy upon a finding of unlawful discrimination. Pet. App. 19a.3 The panel further con cluded that the district court’s holding could not be recon ciled with McKennon, “in which the Court held that . . . after-acquired evidence of a legitimate basis for termina tion does not shield the employer for liability under the violated statute.” Pet. App. 20a. Judge Russell dissented, maintaining that petitioner could not meet the McDonnell Douglas “qualified for employment” standard because he lacked valid work authorization when he applied for re employment. Pet. App. 21a. After TLLI petitioned for rehearing, the Fourth Circuit vacated the panel decision and ordered the case heard en banc. After further argument, the full court issued an 8-4 per curiam opinion affirming the district court’s grant of summary judgment. See App. A. The en banc court broadly ruled that individuals lack ing proper work authorization documents can never have a cause of action for discrimination under Title VII. Pet. App. 5a. Rejecting petitioner’s argument that the “quali fied” prong of McDonnell Douglas requires a plaintiff only to show that he satisfies the minimum qualifications that the employer actually considered in making its hiring decision, the Fourth Circuit held that Title VII also re quires a plaintiff to be legally qualified for employment : 3 The panel pointed out that the scope of remedy could not be resolved on the existing record, because the facts were disputed concerning whether petitioner could have obtained work authoriza tion in July 1993 (for example, by applying for political asylum earlier than he did, see 8 C.F.R. § 208.7(a); Jt. App. 86 ]\ 8) or whether TLLI would have held the job open for him until he ob tained work authorization. See Pet. App. 21a n.5. 7 When the applicant is an alien, being “qualified” for the position is not determined by the applicant’s capacity to perform the job—rather, it is determined by whether the applicant was an alien authorized for employment in the United States at the time in question. Pet. App. 5a. Although this Court had ruled in Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), that undocumented workers are covered by the National Labor Relations Act’s broad definition of “employee” (a definition paral leling Title VXI’s equally broad definition of “individual”), the Fourth Circuit distingiushed Sure-Tan on several grounds—most notably by concluding that Congress in 1986 implicitly overruled Sure-Tan when it enacted the employer sanctions provisions of IRCA, and that “to rule Egbuna was entitled to the position he sought and to order TLLI to hire an undocumented alien would nullify IRCA, which declares it illegal to hire or to continue to employ unauthorized aliens.” Pet. App. 7a-8a.4 Judge Ervin in dissent, joined by three colleagues, dis agreed that undocumented workers could never establish a cause of action for employment discrimination. First, the dissent demonstrated that nothing in the language or structure of IRCA indicated a congressional intent to limit the rights of undocumented workers under federal em ployment law. Indeed, as Judge Ervin pointed out, the IRCA committee reports explicitly cautioned that the new employer sanction provisions should not be construed “to undermine or diminish in any way labor protections in existing law.” Pet. App. 8a-9a & n.l, quoting H.R. 4 Although the court suggested that Sure-Tan was also distin guishable because the discrimination there was directed against aliens who were already on the job rather than aliens applying for employment, the court never explained why that distinction would make any difference, and its broad holding that IRCA’s work au thorization provisions trump Title YII’s coverage and antidiscrim ination provisions necessarily applies to all workers, whether pre- or post-hire, just as that holding necessarily applies to all federal and state employment laws and not just Title VII. Rep.No. 99-682(1) at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662. Second, Judge Ervin pointed out that the en banc court misapplied the unanimous decision in McKennon, in which this Court held that evidence acquired after an ad verse employment decision cannot shield an employer from Title VII liability. Pet. App. 9a-10a, citing McKennon, 513 U.S. at 358. Under McKennon, he reasoned, “[t]he question of Egbuna’s work authorization is one that is pertinent only to the remedy to which he may be entitled, and not to whether TLLI acted with discriminatory animus in its employment decision making.” Pet. App. 10a. Third, Judge Ervin noted all other federal courts’ agree ment that judicial enforcement of the federal employment laws on behalf of undocumented alien workers actually reinforces and strengthens the federal immigration policies embodied in IRCA, because it eliminates employers’ economic incentive to hire undocumented workers in order to avoid being subject to federal employment law require ments. Pet. App. lOa-lla. Finally, Judge Ervin noted that the en banc court’s anal ysis could not logically be limited to the Title VII context, but necessarily extends as well to all other anti-discrimi nation and worker protection laws. Consequently, “[the majority’s analysis] is not only at odds with Congress’s unambiguous intent, as articulated in the legislative his tory, but with every court that has considered IRCA’s effect on federal labor laws.” Pet. App. 11a. REASONS FOR GRANTING THE PETITION The Fourth Circuit held that an employer who discrim inates in its hiring decisions is altogether shielded from Title VII liability if the job applicant is later found to have lacked work authorization under IRCA, even if the employer was unaware of the applicant’s immigration status when making its hiring decision and was in fact motivated by a discriminatory purpose proscribed by Title VII. This case thus presents an opportunity for the Court 8 9 to resolve two important questions of federal employ ment law, each of which has divided the federal circuit courts in their application of this Court’s relevant prece dents. Those questions are first, whether IRCA implicitly amended all federal labor and employment statutes after Sure-Tan to eliminate all coverage under such statutes for undocumented workers; and second, whether there is a gaping “quasi-standing” exception to this Court’s hold ing in McKennon, applicable even where the employer was exclusively motivated in making its adverse employ ment decision by a proscribed, discriminatory purpose, which permits employers to rely upon after-acquired evi dence to demonstrate an employee’s lack of the necessary initial, objective qualifications. I. The Fourth Circuit’s Conclusion That Undocumented Workers Are Not Covered by Title VII Is Contrary to the Plain Statutory Language and Legislative Pur poses of Both Title VII and IRCA, and to Decisions of This Court and Every Circuit Court To Consider IRCA’s Impact on the Federal Employment Law Rights of Undocumented Workers. Except for the Fourth Circuit here, every other court and administrative agency to consider IRCA’s impact on the federal employment law rights of undocumented work ers has concluded that Congress did not intend IRCA to exempt undocumented workers from the protections of those laws. See NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997); Del Rey Tor- tilleria, Inc. v. NLRB, 976 F.2d 1115 (7th Cir. 1992); Patel v. Quality Inn South, 846 F.2d 700 (11th Cir.’ 1988) , cert, denied, 489 U.S. 1011 (1989); NLRB v. Ashkenazy Property Management Corp., 817 F.2d 74 (9th Cir. 1987); EEOC Policy Guidance on the Effect of the Immigration Reform and Control Act of 1986 on the Remedies Available to Undocumented Aliens Under Title VII, EEOC Compliance Manual f 3815 (April 26, 1989) ; General Counsel Memorandum GC 88-9, Rein statement and Backpay Remedies for Discriminatees Who Are “Undocumented Aliens,” (1988 NLRB GCM LEXIS 159 (Sept. 1, 1988). And, except for the Seventh Cir cuit in Del Rey Tortilleria, each of those authorities has also concluded that nothing in IRCA precludes undocu mented workers from receiving backpay and other reme dies where a federal employment law violation has been found. Id. Consequently, review of the Fourth Circuit’s decision is necessary to restore uniformity to the case law and to ensure that workers asserting statutory rights in the Fourth Circuit are not subjected to non-statutory eligibility or remedial standards that do not apply to workers, or their employers, throughout the rest of the country. 1. The Fourth Circuit’s confusion begins with its fail ure to consider Title VII’s plain statutory language, which broadly prohibits discrimination by an employer against “any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Although the statute contains explicit exceptions from coverage for certain political employees (42 U.S.C. § 2000e(f)) and “with respect to the employ ment of aliens outside any State” (42 U.S.C. § 2000e- 1(a) (emphasis added)), Title VII contains no language exempting undocumented workers from its coverage. In Espinoza v. Far ah Mfg. Co., 414 U.S. 86 (1973), this Court held that Title VIFs coverage language and structure made clear that “Title VII was clearly intended to apply with respect to the employment of aliens . . . .” 414 U.S. at 95. Although the facts of the case did not require the Court to determine whether that plain mean ing construction extended to aliens who were “undocu mented,” that is precisely the result the Court reached several years later, when considering the issue under the parallel provisions of the NLRA in Sure-Tan, Inc. v. NLRB, 467 U.S. (1984).5 5 Because Title VII was largely modeled on the NLRA, case law under that statute is often relied upon to construe parallel pro visions of Title VII. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 419 n .l l (1975); Franks v. Bowman Transportation Co., 424 U.S. 747, 768-70 (1976); Ford Motor Co. v. EEOC, 458 U.S. 219, 10 i i Sure-Tan involved an employer who requested an INS raid on its own factory after its largely undocumented work force had voted for union representation. The threshold liability issue was whether the undocumented workers whom the INS had apprehended could bring charges under the NLRA’s anti-retaliation provision, 29 U.S.C. § 158(a)(3). Accepting the NLRB’s longstand ing statutory construction, this Court concluded: . . . The Board has consistently held that undocu mented aliens are “employees” within the meaning of § 2(3) of the Act. That provision broadly provides that “[t]he term ‘employee’ shall include any em ployee,” 29 U.S.C. § 152(3), subject only to certain specifically enumerated exceptions.” Ibid. . . . The breadth of § 2 (3 ) ’s definition is striking: the Act squarely applies to “any employee.” The only limi tations are specific exemptions . . . . Since undocu mented aliens are not among the few groups of work ers expressly exempted by Congress, they plainly come within the broad statutory definition of “employee.” 467 U.S. at 891-92 (footnote and case citations omitted); see also Rios v. Steamfitters Local 638, 860 F.2d 1168, 1173 (2d Cir. 1988) (Title VII); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516-17 (9th Cir. 1989) (same). Just as the NLRB construed the broad definition of “employee” in its governing statute to include undocu mented workers, so too has the EEOC consistently inter preted Title VII’s antidiscrimination provisions as protect ing undocumented as well as documented “individuals.” Since at least 1981, the EEOC has specifically construed Title VII as protecting undocumented aliens: The acceptance or rejection of a Title VII charge should not hinge upon the potential charging party’s status as a documented or undocumented alien. It is the Commission’s position that the term ‘any indi 226 n.8 (1982); H.R. Rep. No. 88-914, 88th Cong., 2d Sess., re printed in 1964 U.S.C.C.A.N. 2402 (1964). 12 vidual’ in § 703 of the Act includes any person, whether documented or not, within the jurisdictional boundaries of any ‘State’ ” . . . EEOC Compliance Manual (CCH) § 622.7, 3806 at 3810-11 (BNA 1982); see also 29 C.F.R. § 1606.1(c) (1970). The EEOC reaffirmed this construction of Title VII shortly after the enactment of IRCA and has never wavered in its basic conclusion that Title VII protects undocumented workers 6—a conclusion that led the EEOC to file amicus briefs in support of petitioner in this case before both the panel and the en banc courts. In enacting IRCA, Congress made clear that it saw no inconsistency between IRCA’s employer sanctions provi sions and the coverage of undocumented workers under federal and state employment laws, including Title VII. Although Congress in IRCA amended several statutes other than Title VII (generally to limit the rights of un documented individuals), it neither amended Title VII’s definition of “employee” and “individual” nor the scope of undocumented workers’ coverage under Title VII (or any other employment statute).7 Moreover, the Commit 6 See EEOC Policy Guidance on the Effect of the Immigration Reform and Control Act of 1986 on the Remedies Available to Un documented Aliens Under Title VII, EEOC Compliance Manual |f 3815 (April 26, 1989) (explaining why “it is essential to the goals of both Title VII and IRCA that undocumented aliens continue to be covered by Title VII”). The NLRB General Counsel and the Department of Labor have reached the same conclusion under the NLRA and FLSA respectively. See supra at 9-10; see also Mem. of Understanding Between Justice Dept’s Immig. and Natur. Serv. and Labor Dept’s Employment Standards Admin. 227 Daily Labor Report (BNA) (Nov. 25, 1998). 7 See, e.g., IRCA § 101(b)(1) (amending the Migrant and Sea sonal Agricultural Worker Protection Act, Pub. L. No. 97-470); IRCA § 121(a)(1) (amending Section 1137 of the Social Security Act, 42 U.S.C. § 1320b-7); IRCA § 121(a)(2) (amending Section 214 of the Housing and Community Development Act of 1980, 42 U.S.C. § 1436(a); IRCA § 121(a)(3) (amending Section 484 of the Higher Education Act of 1965, 20 U.S.C. § 1091) ; IRCA § 121 (a)(5) (amending Section 16 of the Food Stamp Act of 1977, 7 13 tee Reports discussing IRCA’s employer sanctions provi sions specifically express Congress’ intent that the new provisions not be construed to deprive undocumented workers of their existing labor law rights. Those reports warn that any restriction of coverage would encourage employers to hire undocumented rather than documented workers, and would thus undermine the legislative goal of effective immigration law enforceent,8 IRCA’s principal goal was to curtail illegal immigra tion by reducing American employers’ incentive to hire undocumented aliens. See, e.g., H.R. Rep. No. 99-682(1) (1986) at 46, reprinted in 1986 U.S.C.C.A.N. 5649-50 (“Employment is the magnet that attracts aliens here illegally”). Congress recognized that as long as employers could “exploit [undocumented workers as a] source of labor,” jobs for those workers would be plentiful, as would the workers’ corresponding economic incentive to enter this country unlawfully. See id. at 47, 52, 58, reprinted in 1986 U.S.C.C.A.N. at 5651, 5656, 5662. By imposing sanctions on employers who knowingly hire or continue to employ undocumented workers, Congress sought to discourage employers from making jobs avail able to undocumented workers, thereby reducing the job IT.S.C. 2025); IRCA § 121(a)(6) (amending the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq.). 8 The House Education and Labor Committee Report thus stated: [T]he Commitee does not intend that any provision of this Act would limit the powers of State or Federal labor standards agencies such as the . . . Equal Employment Opportunity Com mission . . . to remedy unfair practices committed against un documented employees for exercising their rights before such agencies or for engaging in activities protected by these agen cies. To do otherwise would be counter-productive of our in tent to limit the hiring of undocumented employees and the depressing effect on working conditions caused by their em ployment. House Comm, on Edue. and Labor, H.R. Rep. No. 99-682(11) at 8-9 (1986), reprinted in 1986 U.S.C.C.A.N. 5788; see also House Comm, on Judiciary, H.R. Rep. No. 99-682(1) at 58 (1986), re printed in 1986 U.S.C.C.A.N. 5649, 5662. 14 opportunities that entice many undocumented individuals to immigrate illegally to this country. Id. at 46, reprinted in 1986 U.S.C.C.A.N. at 5650. As Congress recognized, however, its immigration goals could best be accomplished if undocumented workers continued to be protected by the full range of federal and state employment laws, because absent such coverage employers might still be willing to risk relatively low employer sanctions fines in order to obtain a vulnerable, exploitable workforce.9 2. The recognition that effective labor law enforcement furthers rather than impedes IRCA’s immigration policies informs the holdings of every other circuit court to con sider IRCA’s impact on federal employment law. Indeed, the Fourth Circuit’s holding that IRCA implicitly over ruled Title VII’s coverage provisions is the only case in the 13 years since IRCA’s enactment to so hold. In NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997), for example, an employer dis charged two undocumented union supporters who then brought an unfair labor practice charge alleging retaliation. Affirming the NLRB’s holding that the discharged workers were protected by the NLRA (and entitled to a condi tional reinstatement remedy plus backpay), the Second Circuit concluded that Congress in 1986 had not intended to strip complaining workers of statutory protection: The primary purpose of IRCA was to make it more difficult to employ undocumented workers and to punish the employers who offer jobs to these workers. IRCA’s legislative history explains Congress’s rea sons for adopting this employer-focused enforcement strategy, and also demonstrates the intention to pre serve the NLRA’s protection of and remedies for 9 See Sure-Tan, 467 U.S. at 893-94 (“If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened. In turn, if the demand for un documented aliens declines, there may then be fewer incentives for aliens themselves to enter in violation of the federal immigration laws”) ; DeCanas v. Bica, 424 U.S. 351, 356-57 (1976). 15 undocumented workers as one of the many elements in the federal government’s strategy to protect U.S. labor markets from the effects of illegal immigration. 134 F.3d at 55. The Second Circuit also agreed with the NLRB that “the most effective way . . . to accommodate—and indeed to further—the immigration policies IRCA embodies is, to the extent possible, to provide the protections and remedies of the NLRA to undocu mented workers in the same manner as to other employees. To do otherwise would increase the in centives for some unscrupulous employers to play the provisions of the NLRA and IRCA against each other to defeat the fundamental objectives of each, while profiting from their own wrongdoing with rela tive impunity. Thus, these employers would be free to flout their obligations under the Act, secure in the knowledge that the Board would be powerless fully to remedy their violations.” 134 F.3d at 56-57, quoting A.P.R.A. Fuel Oil Buyers Group, 320 N.L.R.B. at 415. The Eleventh Circuit adopted a similar analysis in Patel v. Quality Inn South, 846 F.2d 700, holding that IRCA did not limit the scope of the FLSA’s protection of undocumented workers. After concluding that the FLSA’s language and legislative purposes supported a finding of coverage, the Eleventh Circuit turned to the question whether IRCA implictly limited that scope. As the court explained: [Njothing in the IRCA or its legislative history sug gests that Congress intended to limit the rights of undocumented aliens under the FLSA. . . . Indeed, the FLSA’s coverage of undocumented aliens goes hand in hand with the policies behind the IRCA. Congress enacted the IRCA to reduce illegal immi gration by eliminating employers’ economic incentive to hire undocumented aliens. To achieve this objec tive the IRCA imposes an escalating series of sanc tions on employers who hire such workers. See 8 16 U.S.C. § 1324a. The FLSA’s coverage of undocu mented workers has a similar effect in that it offsets what is perhaps the most attractive feature of such workers—their willingness to work for less than the minimum wage. If the FLSA did not cover undocu mented aliens, employers would have an incentive to hire them. Employers might find it economically advantageous to hire and underpay undocumented workers and run the risk of sanctions under the IRCA. We recognize the seeming anomaly of discouraging illegal immigration by allowing undocumented aliens to recover in an action under the FLSA. We doubt, however, that many illegal aliens come to this country to gain the protection of our labor laws. Rather it is the hope of getting a job—at any wage—that prompts most illegal aliens to cross our borders. By reducing the incentive to hire such workers the FLSA’s cover age of undocumented aliens helps discourage illegal immigration and is thus fully consistent with the ob jectives of the IRCA. We therefore conclude that undocumented aliens continue to be “employees” cov ered by the FLSA. 846 F.2d at 704-05 (emphasis in original). Finally, the Seventh Circuit in Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115 (7th Cir. 1992), another case arising under the NLRA, also concluded that Congress did not intend to exclude undocumented workers from federal labor law protections. Although the Seventh Cir cuit disagreed with the other circuits on the issue of remedy (see infra at 18 n.12), it concurred with all the other circuits that have addressed the question, except the Fourth Circuit, that undocumented workers have a valid claim under the NLRA, and it read IRCA and its legisla tive history as reaffirming this Court’s “holding [in] Sure- Tan, that undocumented aliens are employees within the meaning of the NLRA.” 976 F.2d at 1121. 3. Although the Fourth Circuit in this case held that petitioner had “no cause of action” under Title VII (Pet. 17 App. 5a), the court might have meant only that employees lacking work authorization could not proceed under Title VII because they would not be entitled to any of the specific remedies available under Title VII if they pre vailed.10 11 If that were the court’s intended meaning, how ever, it made no effort to justify its holding by explaining, on a remedy-by-remedy basis, precisely why or how IRCA would be violated by an order granting one or more of those remedies—which include backpay, front pay, injunc tive relief, compensatory damages (e.g., for emotional dis tress, see Jt. App. 87 10, 90), punitive damages, and injunctive relief.11 In fact, while remedial orders issued under one statute should not directly conflict with rights or obligations under another (see, e.g., Sure-Tan, 467 U.S. at 903; Southern S.S. Co. v. NLRB, 316 U.S. 31, 47 (1942)), the only employment law remedy that might directly conflict with IRCA’s employer sanctions provi sions would be an order requiring the employment of a worker who cannot produce proper employment authori zation when legally required to do so. That is why, for example, the Second Circuit in A.P.R.A. Fuel Oil Buyers Group, 134 F.3d at 53, 58, awarded a conditional re instatement remedy— i.e., conditioned upon the discrimi- natees’ satisfying IRCA’s work authorization requirements within a reasonable period of time. No reason appears why IRCA would preclude any other remedies. 10 See Pet. App. 5a (“We find, however, that Egbuna has no cause of action because his undocumented status rendered him in eligible both for the remedies he seeks and for employment within the United States”) ; id. (emphasis in original) (“A plaintiff is entitled to the above remedies only upon a successful showing that the applicant was qualified for employment”) ; Pet. App. 7a-8a (“to rule Egbuna was entitled to the position he sought and to order TLLI to hire an undocumented alien would nullify IRCA, which declares it illegal to hire or to continue to employ unauthorized aliens”). 11 Indeed, the court seemed unware that Title VII had been amended in 1991 to provide compensatory and punitive damages, in addition to the previously-available equitable remedies. See Pet. 5a. Even if the en banc decision were construed as holding only that undocumented workers are not entitled to the particular statutory remedies of Title VII, a circuit con flict could still not be avoided. Rather, the Fourth Cir cuit’s decision here would simply exacerbate the already existing conflict identified by both the Seventh Circuit in Del Rey Tortilleria and the Second Circuit in A.P.R.A. Fuel Oil Buyers Group concerning the availability of backpay and reinstatement remedies for workers who were undocumented at the time of their employer’s chal lenged decision.12 The instant case thus presents the Court with an opportunity to resolve that conflict, at least in part, by construing the plain language and legislative purposes of Title VII and IRC A to determine the extent, if any, of the statutory inconsistencies. 12 See Del Rey Tortilleria, 976 F.2d at 1115 n.*, 1119 (acknowl edging conflict between Ninth Circuit’s pre-IRCA decision in Local 512, Warehouse & Office Workers’ Union v. NLRB (“Felbro”), 795 F.2d 705, 719 (9th Cir. 1986), and its holding that undocumented workers could not recover backpay for the period they lacked proper work authorization because they were not “harmed in a legal sense”) ; NLRB v. A.P.R.A. Fuel Oil Buyers Group, 134 F.3d at 58 (“the Seventh Circuit concluded too hastily that Congress [in IRCA] rejected the reasoning of [the Ninth Circuit] in Felbro. Indeed, in our view, IRCA demonstrates a Congressional intent to punish the employers of illegal aliens, not to grant them any addi tional reward for their illegal actions. And, as this court [in Rios] has already adopted Felbro’s thoughtful and well-grounded rea soning, we see nothing in IRCA that limits the Board’s power to grant a remedy of backpay that is tailored to the verification require ments of IRCA”). The Seventh Circuit’s analysis of the backpay issue also conflicts with the Ninth Circuit’s post-IRCA reaffirmation of Felbro in NLRB v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987), and with the Eleventh Circuit’s deci sion in Patel v. Quality Inn South, 846 F.2d 700 (although the Seventh Circuit sought to distinguish Patel on the ground that the worker there was underpaid for work performed, rather than not paid for work unperformed, see 976 F.2d at 1122 n.7). In addition, the Seventh Circuit’s analysis is inconsistent with the position taken by the NLRB and its General Counsel, and by the EEOC, each of which have concluded that Congress intended un documented victims of discrimination to be entitled to at least some make whole remedies under the federal labor laws. 18 19 II. The Fourth Circuit’s Reliance on the Employer’s After- Acquired Evidence of Petitioner’s Undocumented Immigration Status Is Contrary to McKennon and McDonnell Douglas, to Decisions of Several Circuit Courts, and to Title VII’s Underlying Antidiscrimina tion Policies. Quite aside from the fact that the Fourth Circuit’s ruling exacerbates the existing circuit conflict on IRCA’s employment law impacts, that ruling also deepens a con flict among the federal circuits concerning the application of McKennon and McDonnell Douglas to cases in which the employer discriminates on an impermissible basis but later ascertains that plaintiff lacked an initial qualification for the job established either by the employer or by ex ternal law. The Fourth Circuit’s approach to that basic, generic Title VII issue reflects a fundamental misunder standing of Title VII as construed by McKennon and Mc Donnell Douglas. For, the Fourth Circuit’s holding (and similar holdings by the Seventh Circuit) compromises the bedrock antidiscrimination principle that an employer may not “treat[] ‘some people less favorably than others because of their race, color, religion, sex, or national origin [and other proscribed classification].” Furnco Con struction Corp. v. Waters, 438 U.S. 567, 576 (1978), quoting Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). In the Fourth and Seventh circuits, em ployers may treat “some people less favorably than others,” based on proscribed criteria, as long as it turns out that the discriminatees did not satisfy some “objective” quali fication for employment, albeit one that the employer did not consider in making its decision. 1. The federal courts of appeals, both before and after McKennon, have split on whether “after-acquired” evi dence that a worker lacked initial qualification for em ployment precludes the worker’s employment discrimina tion suit: a. The Fourth Circuit in this case and the Seventh Circuit in a line of cases from Gilty v. Village of Oak 20 Park, 919 F.2d 1247 (7th Cir. 1990), through Senner v. Northcentral Technical College, 113 F.3d 750 (7th Cir. 1997), read Title YII (and other employment laws) as incorporating “quasi-standing elements” (Gilty, 919 F.2d at 1251) that require a threshold “successful showing that the applicant was qualified for employment” (Pet. App 5a) based on “an objective standard” of qualification as to which the “employer’s knowledge or lack of knowl edge [of the applicant’s failure to meet that qualification] is of no relevance.” Gilty, 919 F.2d at 1247; see Senner, 113 F.3d at 755 (“A plaintiff must show he was qualified for the position he sought, or else he cannot prove in jury.”)13 Those cases derive their objective qualification, “quasi-standing” approach from one of the elements of a prima facie case of hiring discrimination articulated in McDonnell Douglas v. Green, 411 U.S. at 802; see Gilty, 919 F.2d at 1251 (referring to “the quasi-standing ele ments set out in McDonnell Douglas”)', Pet. App. 21a (Russell, J., dissenting from panel opinion).14 * 11 13 To further complicate the confusion, the Seventh Circuit on a closely-related question has subscribed to the view that an employer may not defend a discriminatory firing based on information ac quired after the discharge indicating that the plaintiff was not initially qualified for the position he or she held, because “ [t]he deterring statutory penalty is for retaliatory firing, the character of which is not changed by some after discovered alternate reason for discharge which might otherwise have been used, but was not.” Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 369 (7th Cir. 1993); see also Smith v. General Scanning, Inc., 876 F.2d 1315, 1319 (7th Cir. 1989). 11 While the en banc opinion does not provide any citation for its quasi-standing holding (see Pet. App. 5a), the author of the en banc opinion, Judge Russell (see Pet. App. la n.*), relied upon McDonnell Douglas in making the same point in his dissent to the original panel decision. Pet. App. 21a. That this “quasi-standing” analysis retains influence despite this Court’s McKennon decision is demonstrated not only by this case and Senner, but also by recent reliance on the Gilty analysis by a federal district court outside the Fourth and Seventh Circuits. See King v. Stanislaus Consol. Fire Protection Dist., 985 F.Supp. 1228, 1232 (E.D. Cal. 1997). 21 b. The Third. Fifth, and Eleventh Circuits, in contrast, maintain that because employment discrimination cases turn on the employer’s actual motivation for adverse deci sions (as this Court held in McKennon), initial hiring qualifications that were not in fact taken into account by the employer are simply irrelevant in determining whether the employee states a claim, although such qualifications may be pertinent, as McKennon held, to the remedies available if unlawful discrimination is established. See Mardell v. Harleysville Life Ins. Co., 31 F,3d 1221 (3d Cir. 1994) (“Mardell I”), vacated, 115 S.Ct. 1397, re affirmed and reinstated upon remand, 65 F.3d 1072, 1973 (3d Cir. 1995) (“Mardel II”) (rejecting the contention that “the plaintiff lacks standing because he or she was not qualified for the position” because “what is relevant to the inquiry is the employer’s subjective assessment of the plaintiff’s qualifications, not the plaintiff’s objective ones if unknown to the employer”); Wallace v. Dunn Construction Co., Inc., 62 F.3d 374, 378-79 (11th Cir. 1995) (citations omitted) (rejecting, in reliance on Mc Kennon, the argument that “one who obtains a job or employment contract by misrepresentation has . . . no standing to sue for alleged employment-related wrongs”); Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106, 1108- 09 (5th Cir. 1995) (rejecting the employer’s argument that McKennon does not apply if the plaintiff would not have been hired initially had her true qualifications been considered); cf. Smith v. Secretary of the Navy, 659 F.2d 1113, 1120 n.57 (D.C. Cir. 1981) (pre-McKennon case rejecting a standing argument based on McDonnell Doug las qualification prong). The Third Circuit in Mardell directly addressed the contention that the McDonnell Douglas prima facie case incorporates a “quasi-standing” principle applicable to all employment discrimination cases, rejecting that conten tion as unsound and inconsistent with basic employment discrimination principles: The plaintiff’s McDonnell Douglas prima facie case was formulated to identify circumstances under which 22 the discriminatory motive or intent of the employer may be inferred. . . . Consequently, what is relevant to the inquiry is the employer’s subjective assessment of the plaintiff’s qualifications, not the plaintiff’s ob jective ones if unknown to the employer. In other words, the strength of the inference of discrimination based on the prima facie case is independent of the plaintiff’s qualifications that were unknown to the employer. The no-standing argument additionally runs counter to the plain meaning of Title VII and ADEA. Those statutes grant standing to “any individual” discrim inated against by a covered employer. See 42 U.S.C.A. § 2000e-2(a) (1981). . . . The point is that neither definition contains an exception for . . . em ployees who measured against some objectively de fined criteria are ‘unqualified.’ Congress having granted standing . . . the matter is settled. 31 F.3d at 1230-31 (footnotes omitted); see also Smith, 659 F.2d at 1120 & n.57 (concluding that, to have stand ing to sue under Title VII, a plaintiff need only show that he is a “person aggrieved” within the meaning of 42 U.S.C. § 2000e-5(b), (f), and that “[w]here the plaintiff is a victim of prohibited discrimination by an employer subject to the Act, he plainly falls within the zone of protected interests [and therefore has standing to sue]”). 2. The Fourth Circuit’s “quasi-standing” approach not only deepens the circuit conflict on this basic, recurring issue of Title VII law, but also: a) reflects a basic mis understanding of the role and nature of the “qualification” concept in the McDonnell Douglas line of cases; b) mis apprehends the kinds of injuries from which Title VII provides protection; and c) cannot be reconciled with this Court’s decision in McKennon. a. In McDonnell Douglas, 411 U.S. at 802, this Court established an evidentiary sorting device to assist district courts in evaluating claims of discrimination. To survive summary judgment under the McDonnell Douglas frame work, a Title VII plaintiff who does not present direct 23 proof of discriminatory motive must meet the initial evi dentiary burden by establishing a prima facie case of dis crimination. That burden may be met with a showing by plaintiff: (i) that he belongs to a racial minority [or other protected group]; (ii) that he applied and was quali fied for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the posi tion remained open and the employer continued to seek applicants. Id.; see also St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983); Texas Department of Com munity Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Corporation v. Waters, 438 U.S. 567 (1978). The McDonnell Douglas prima facie case approach does not, however, as it could not, replace the provisions of Title VII itself regarding the elements necessary to establish liability. Rather, McDonnell Douglas and its progeny simply provide a means, applicable in some but not all Title VII cases, to help analyze the determinative factual question in all Title VII disparate treatment cases: The central focus of the inquiry in a case such as this is always whether the employer is treating “some people less favorably than others because of their race, color, religion, sex, or national origin {or other pro scribed criteria].” The method suggested in McDonnell Douglas for pursuing this inquiry, however, was never intended to be rigid, mechanized, or ritual istic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we pre sume these acts, if otherwise unexplained, are more likelv than not based on the consideration of imper missible factors. 24 Furnco, 438 U.S. at 577 (emphasis added) (citations omitted); see also Bur dine, 450 U.S. at 253 (the “ulti mate burden” in a Title VII case is to “persuad[e] the trier of fact that the defendant intentionally discrimin ated”; McDonnell Douglas standards are designed “to bring the litigants and the court expeditiously and fairly to this ultimate question”); Athens, 460 U.S. at 714-16 (the McDonnell Douglas standards may not be used to “evade[] the ultimate question of discrimination vel non;” that question concerns “the employer’s mental processes”). The McDonnell Douglas prima facie case standards, then, simply facilitate in certain circumstances the critical determination whether “the employer had relied on a for bidden factor under Title VII in making an employment decision.” Price Waterhouse v. Hopkins, 490 U.S. 228, 270 (1989) (O’Connor, J., concurring). But meeting those standards is not the only way to prove a Title VII disparate treatment case. Either direct evidence of dis criminatory motive or other circumstantial evidence pat terns from which discriminatory motive may fairly be in ferred are equally valid approaches, and once the case has been tried to the trier of fact the question whether plaintiff has met the McDonnell Douglas standards is no longer even pertinent.15 Given the true, limited office of the McDonnell Douglas standards, it becomes apparent that the “qualification” 15 See, e.g., id.; McDonnell Douglas, 411 U.S. at 802 n.13 (“The facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from [a plaintiff] is not nec essarily applicable . . . to different factual situation); Teamsters v. United States, 431 U.S. at 358 (“The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offer ing evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act”) ; Aikens, 460 U.S. at 715 (“Where the defendant has done everything that would be required of him if the plaintiff had prop erly made out a prima facie case, whether the plaintiff really did so is no longer relevant”). 25 prong of those standards cannot possibly serve as a basis for the “quasi-standing,” objective qualification approach to after-acquired evidence of initial qualifications sanc tioned by the Fourth Circuit here and by the Seventh Circuit in the Gilty line of case, for three reasons. First, as Mar dell I noted (see supra at 21), Title VII itself does not limit the group of individuals protected from employment discrimination, or authorized to file suit for discrimination, to those determined by some objective standards to be eligible for employment. Since McDon nell Douglas simply implements, but does not alter, the basic provisions of Title VII, its prima facie case stand ards cannot create a limitation on filing suit under Title VII not contained in the statute itself. Second, and along the same lines, the McDonnell Douglas standards are intended to aid in ascertaining the employer’s motive in making an adverse employment deci sion, not to create a requirement in addition to illicit motive for establishing Title VII liability. A qualification requirement that could not have been relied upon by an employer at the time the adverse decision was made be cause not inquired into at the time is of no probative value whatever in determining the employer’s state of mind at the time of decision. Correspondingly, an employee’s “ob jective” failure to meet a qualification cannot in any way negate or weaken an otherwise supportable inference that the employer was probably relying on an impermissible criterion where—as here—it is undisputed that whatever the reason for the employer’s actions, that reason was not the employee’s “objective” disqualification. Finally, the McDonnell Douglas standards are not uni versally applicable in Title VII cases, but are pertinent only where the plaintiff relies on circumstantial rather than direct evidence, only if some other combination of circumstantial evidence is not equally or more persuasive under the particular circumstances, and only until the parties make their full factual presentations to the trier of fact. See supra 24 n. 15. Consequently, McDonnell Douglas and its progeny cannot possibly be the basis for deriving a universally-applicable objective qualification quasi-standing requirement for all Title VII (or all em ployment discrimination) cases. The alternative suppositions— that qualifications not relied upon by the employer preclude an employee from bringing suit under Title VII if the employer chooses to rely on the McDonnell Douglas proof pattern but not otherwise, or if the case is decided before trial but not afterwards are equally absurd. No reason appears, for example, why an undocumented worker whose employer announces the discriminatory basis for an adverse employ ment action or discovers the worker’s undocumented status only at trial should be able to bring suit under Title VII, while an undocumented worker whose employer conceals a discriminatory motive or learns of the worker’s undocumented status during discovery may not. b. The only alternative to the McDonnell Douglas prima facie case litany that has been suggested as the basis for a “quasi-standing,” “objective” qualification re quirement in Title VII is the notion that an employee who lacks basic job qualifications suffers no legally cog nizable injury in fact” if illegally discriminated against See Senner, 113 F.3d at 755; King, 985 F. Supp. at 1231 n.2. But as this Court has repeatedly indicated, in dis crimination cases there is an injury in fact” simply from being subjected to a discriminatory policy or decision, even if the plaintiff cannot prove that he or she would have ̂ fared better under a nondiscriminatory policy or decision. See, e.g., Northeastern Florida Contractors v Jacksonville, 508 U.S. 656, 666 (1993); Regents of the University of California v. Bakke, 438 U S 265 281 n. 14, 320 n. 54 (1978). In hiring cases, it is possible that in some circumstances (such as those TLLI maintains obtain here) the trier of fact could find that, if no discrimination had occurred, the employer in pursuing its usual hiring process would have learned of the disqualificaton and taken the same adverse 26 27 employment action, with the same economic consequences (failure to hire), for the legitimate, lack-of-qualification reason. If the trier of fact so found, a limitation on economic damages might be appropriate on the theory that the actual backpay loss traceable to the discrimination can only cover the period before the lack of qualification would have been discovered in due course absent the discrimination. But the fact that the economic losses are limited does not mean that they are nonexistent. Here, for example, it appears that it was the employer’s practice to check an employee’s Form 1-9 documentation several days after, not before, the start of employment, and IRC A expressly permits such a three-day grace period. See supra at 3. Moreover, an employer might not in fact enforce estab lished qualifications for employment, even those legally required to be enforced. Here, for example, TLLI from December 1989 to April 1993 permitted Egbuna to work without proper work authorization. See Pet. App. 2a. An employee may, therefore, be able to allege and prove actual economic losses in a hiring case even where he or she does not meet the employer’s (or the govern ment’s) official employment qualifications. Further, in enacting Title VII, “Congress considered reliance on [proscribed criteria] in making employment decisions an evil in itself” (Price Waterhouse v. Hopkins, 490 U.S. at 265 (O’Connor, J., concurring), and in amending Title VII in the Civil Rights Act of 1991, Congress specifically provided for compensatory and puni tive damages to remedy the injuries other than lost wages caused by violation of the statute. 42 U.S.C. § 1981 a (b ) ; H.R. Rep. No. 102-40(1), 102nd Cong., 1st Sess. 64-65 (1991) (Act provides remedies for injuries to “careers, . . . mental and emotional health, and . . . self-respect and dignity”). Since Title VII expressly recognizes and protects such injuries due to employment discrimination, an employee who alleges such injuries—as Egbuna has done here—has alleged a legally-cognizable harm and should be entitled to pursue his claims. 28 c. Finally, the Fourth Circuit’s “quasi-standing” ap proach to the initial qualification issue is flatly incon sistent with this Court’s holding in McKennon, a case that differs from this principally in that: 1) the employer in McKennon attempted to rely on after-acquired evidence of misconduct while employed, rather than on lack of initial qualifications, as a basis for nonsuiting a plaintiff in an employment discrimination case; and 2) the employment standards violated by the employee in McKennon were established by the employer itself, rather than by the government.16 These distinctions are of no moment under the reasoning of McKennon. McKennon started from the premise that the funda mental purpose of employment discrimination statutes such as Title VII is “ ‘the elimination of discrimination in the workplace’ ” (513 U.S. at 358), and consequently that “[t]he disclosure through litigation of incidents or prac tices which violate national policies respecting nondis crimination in the workplace is itself important.” Since the “employer’s motives” in taking an adverse action are “an essential element in determining whether the employer violated the federal discrimination law,” the goal of un covering, deterring, and compensating victims of discrimi nation must focus on the employer’s actual motives for its actions; otherwise, employers would likely continue to act for illegal, discriminatory reasons. Id. at 360. And because an “employer could not have been motivated by knowl edge it did not have and . . . cannot claim that the [employment action was taken] for [a later-discovered] nondiscriminatory reason” (id), McKennon allows em ployees to proceed with their employment discrimination cases (albeit with a possible limitation on the available remedies) even if their employer could have taken the 16 Although McKennon involved a discriminatory discharge rather than a discriminatory falure to hire, the Fourth Circuit in this case nowhere indicated that its result would have been different if Egbuna had worked for a period before being discharged for re taliatory reasons, but was later discovered to have lacked work authorization while working. 29 same action for legal reasons had it possessed information at the time of the decision that it only discovered later. Nothing in this line of reasoning is affected by either of the possibly pertinent distinctions between this case and McKennon. Qualifications for initial employment (such as possession of certain educational and experiential back ground) are no more or less enforceable, absent discrimi- tion, than qualifications for continued employment (such as trustworthiness, promptness, or achievement of specified production goals). While government-imposed qualifica tions for employment (such as IRCA work authorization status or possession of a required license) may for public policy reasons be respected by a court devising remedies for an illegal employment practice (see, e.g., NLRB v. Future Ambulette, Inc., 903 F.2d 140, 145 (2d Cir. 1990)), McKennon recognizes that protecting “the lawful prerogatives of the employer in the usual course of its business” to “exercisfe] . . . discretion[] in the course of the hiring, promotion, and discharging of their employees” is also a recognized public policy, arising from the em ployment discrimination statutes themselves, and similarly may counsel limitations on the available equitable reme dies. 513 U.S. at 361. That McKennon cannot be squared with the Fourth Circuit’s “quasi-standing” holding in this case is perhaps best demonstrated by the fact that the very same “lack of standing” propositions advanced by TLLI in this case comprised almost all of the legal argument presented to this Court in McKennon, but not considered of sufficient moment even to merit specific discussion in the McKennon opinion. See Brief for Respondent in No. 93-1543 at 24- 40; id. at 24-26 (arguing that the employee in McKennon lacked “standing” because she suffered “no invasion of a legally protected interest and, consequently, no judicially cognizable injury”); id. at 35-40 (arguing that the plain tiff in McKennon could not maintain her suit because, under McDonnell Douglas, “she was not qualified for the job she held” since “[h]er misconduct ‘disqualified’ her”); 30 id. at 38-39 (relying expressly on Gilty’s “objective” McDonnell Douglas analysis). The Fourth Circuit, in short, simply flaunted McKennon by its ruling in this case. Pet. App. 9a. For that rea son, as well as to resolve two deep and important con flicts among the circuits and to clarify the import and role of the prima facie case analysis of McDonnell Douglas and its progeny, this Court should grant certiorari. For the reasons stated above, this Court should issue a writ of certiorari to the Fourth Circuit, reverse the Fourth Circuit’s holding that petitioner Obiora Egbuna is precluded from maintaining this action, and order this case remanded to the district court so the employment discrimi nation action may proceed. CONCLUSION Respectfully submitted, John P. Racin Weissbrodt & Racin 1721 Lamont Street, N.W. Washington, D.C. 20010 (202) 265-2516 Nina j . Ginsberg Dimuro, Ginsberg Marsha S. Berzon Michael Rubin (Counsel of Record) Kathleen Morris Altshuler, Berzon, Nussbaum, Berzon & Rubin 177 Post Street, Suite 300 San Francisco, CA 94108 (415) 421-7151 & Lieberman 908 King Street, Suite 200 Alexandria, VA 22314 (703) 684-4333 Attorneys for Petitioner APPENDICES la APPENDIX A UNITED STATES COURT OF APPEALS FOURTH CIRCUIT No. 95-2547 O biora E . E g b u n a , Plaintiff-A ppellant, v . T im e -L if e L ib r a r ie s , I n c o r po r a t e d , Defendant-Appellee, E qual E m p l o y m e n t O p p o r t u n it y C o m m is s io n , Amicus Curiae. Argued March 4, 1997 Decided Aug. 19, 1998 Before WILKINSON, Chief Judge, RUSSELL, WID- ENER, MURNAGHAN, ERVIN, WILKINS, NIE- MEYER, HAMILTON, LUTTIG, WILLIAMS, MI CHAEL, and MOTZ, Circuit Judges, and HALL, Senior Circuit Judge.* Affirmed by published per curiam opinion, in which Chief Judge WILKINSON, Judge WIDENER, Judge WIL KINS, Judge NIEMEYER, Judge HAMILTON, Judge * The opinion in this case was prepared by Circuit Judge Donald S. Russell. Judge Russell died prior to the time the decision was filed. The remaining members of the court majority continue to concur in his opinion. 2a LUTTIG, Judge WILLIAMS, and Senior Judge HALL joined. Judge ERVIN wrote a dissenting opinion, in which Judge MURNAGHAN, Judge MICHAEL, and Judge MOTZ joined. OPINION PER CURIAM. Obiora E. Egbuna brought this employment discrimi nation action against his former employer, Time-Life Li braries, Inc. (“TLLI”), alleging that TLLI refused to rehire him in retaliation for his having participated in another employee’s discrimination suit against TLLI. The district court granted summary judgment to TLLI find ing that Egbuna had not established a prim a facie case of employment discrimination. A panel of our circuit reversed the district court’s ruling. Before the case was remanded to the district court, however, a majority of this court granted a rehearing en banc. This decision follows. I. TLLI hired Egbuna, a Nigerian national, in June 1989. When TLLI hired Egbuna, he possessed a valid student work visa issued by the Immigration and Naturalization Service (“INS”). Although Egbuna’s work visa expired six months after he was hired, TLLI apparently failed to note that it had expired, and Egbuna continued to work for TLLI until April 1993.1 During Egbuna’s employment with TLLI, a subordi nate of Egbuna, Harrison Jackson, told Egbuna that he had been sexually harassed by a supervisory employee. Egbuna failed to report these complaints to higher man agement, or to TLLI’s Human Resources Department, in violation of company policy. But when TLLI investi gated Jackson’s allegations, after Jackson filed a charge l l The record reveals that TLLI’s hiring policy was to refuse uniformly to hire prospective alien employees who fail to produce valid identification and proof of authorization for employment. 3a of dicrimination against TLLI with the Equal Employ ment Opportunity Council alleging that he had been the victim of unlawful sexual harassment in the workplace, Egbuna corroborated many of Jackson’s allegations. In April 1993, Egbuna voluntarily resigned from TLLI because he intended to return to Nigeria. When his plans changed, he approached TLLI in June 1993 about re employment. At that time, Egbuna was still unauthorized to work in the United States, because he had never at tempted to renew his visa.2 On the twenty-first of July, TLLI informed Egbuna that he would not be hired. Contending that TLLI had extended him an employ ment offer on July nineteenth and withdrew the offer on the twenty-first because Egbuna had corroborated many of Jackson’s allegations of sexual harassment, Egbuna sued TLLI for violating section 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-3(a). Section 2000e-3 provides that discrimination by an em ployer against an employee or applicant for employment who has participated in a Title VII investigation, pro ceeding, or hearing constitutes an unlawful employment practice. TLLI moved for summary judgment on the grounds that it never made Egbuna an offer on July 19, 1993, and that even if TLLI had extended an offer to Egbuna, TLLI could not have employed him because of his un documented alien status. The district court granted TLLI’s motion. Relying on McDonnell Douglas Corp. v. Green,3 the district court found that Egbuna could not demonstrate that he was a victim of discrimination, because at the time he sought employment, Egbuna was unqualified for the position he sought by virtue of his 2 Egbuna’s deposition reveals that he never attempted to renew his visa because he feared deportation and did not want to alert the authorities of his illegal immigration status. 3 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 4a failure to possess legal documentation authorizing him (an alien) to work in the United States.4 II. We review the grant of summary judgment de novo.5 TLLI is entitled to summary judgment if there is no gen uine issue of material fact for trial and TLLI is entitled to summary judgment as a matter of law.6 To be success ful in its motion for summary judgment, TLLI must show the absence of evidence to support Egbuna’s case.7 Con versely, to defeat TLLI’s motion, Egbuna must demon strate the existence of a genuine trial issue of fact without relying upon mere allegations or denials of his pleading.8 We may affirm the grant of summary judgment on grounds other than those relied upon by the district court.9 Allegedly TLLI offered Egbuna a job in July 1993 and then rescinded its offer two days later because Egbuna had participated in Jackson’s suit against TLLI.10 Egbuna 4 Egbuna was eventually granted temporary work authorization in January 1994, in connection with his application for political asylum. Thus, from December 1989 through January 1994, Egbuna was unemployable in the United States. 5 Nguyen v. CNA Corp., 44 F.3d 234, 236 (4th Cir. 1995). 6 Fed.R.Civ.P. 56(c) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322- 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). 7 Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See also Shaw, 13 F.3d at 798 (“A mere scintilla of evidence supporting the case is insufficient.” ). 9 Keller v. Prince George’s County, 923 F.2d 30, 32 (4th Cir. 1991). 10 Conspicuously, the individual who allegedly made the offer and revocation of employment, and who indicated TLLI did not hire Egbuna for retaliatory reasons, was neither deposed by Egbuna nor named on his witness lists. 5a maintains these facts present a classic case of retaliation. We find, however, that Egbuna has no cause of action because his undocumented status rendered him ineligible both for the remedies he seeks and for employment within the United States. Pursuant to Title VII, a plaintiff may seek equitable remedies from the courts for the discriminatory employ ment practices of an employer.11 The remedies include the hiring of the applicant, reinstatement, back pay, and injunctions against further violations.* 12 The goal of award ing these equitable remedies is to make the complainant whole without imposing large monetary penalties upon the employer.13 A plaintiff is entitled to the above remedies only upon a successful showing that the applicant was qualified for employment. When the applicant is an alien, being “qualified” for the position is not determined by the appli cant’s capacity to perform the job—rather, it is deter mined by whether the applicant was an alien authorized for employment in the United States at the time in ques tion. Congress so declared in the Immigration Reform and Control Act of 1986 (“IRCA”), which was enacted to reduce the influx of illegal immigrants into the United States by eliminating the job magnet.14 IRCA declares it unlawful for employers to employ, recruit, or refer for a fee all unauthorized aliens15 IRCA identifies unauthor ized aliens as those individuals who at the particular time U 42 U.S.C.A. § 2000e-5(g) (1994). 12 Id. 13 Albemarle Paver Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (Title VII remedies serve to restore the complainant to the position he would have been in absent the dis crimination). l l Statement by President Ronald Reagan Upon Signing S. 1200, 22 Weekly Corny. Pres. Doc. 153b, (Nov. 10, 1986). i® 8 U.S.C.A. § 1324a (West Supp. 1997). 6a relating to employment are aliens neither lawfully ad mitted for permanent residence, nor authorized to be so employed by IRCA or by the Attorney General.16 To ensure, therefore, that employers do not hire un authorized aliens, IRCA mandates that employers verify the identity and eligibility to work of each new-hire by examining specified documents before they begin work.17 If an alien applicant is unable to present the required documentation, the unauthorized alien cannot be hired.18 Similarly, if an employer unknowingly hires an unauthor ized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker’s undocumented status.19 IRCA specifically states: It is unlawful for a person or other entity, after hir ing an alien for employment in accordance with para graph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employ ment.20 Employers who violate IRCA are punished not only by a series of civil fines,21 but are also subject to criminal penalties of up to $3,000 for each unauthorized alien so employed, and/or imprisonment for not more than six months for a pattern or practice of such violations.22 IRCA thus statutorily disqualifies any undocumented alien from being employed as a matter of law. 16I d . § 1324a(h)(3). 17 Id. § 1324a(b). 18I d . § 1324a(a)(1). 19 I d . § 1324a(a) (2). 20 Id. 21 Id. § 1324a(e) (4), 22 Id. § 1324a(f) (1). 7 a Regardless of the fact that IRCA proscribes the rela tionship between an unauthorized alien and an employer, Egbuna cites Sure-Tan, Inc. v. NLRB,23 to support his contention that Title VII protects unauthorized aliens from employment discrimination occurring during the hir ing process. Sure-Tan, a National Labor Relations Act (“NLRA”) case which extended NLRA protection to illegal alien employees, is inapplicable to the case at hand for three reasons. First, Sure-Tan, is not a case in which the alleged discrimination occurs during the hiring proc ess. The unauthorized aliens in Sure-Tan experienced dis crimination after they were hired and while they were employees of Sure-Tan. Second, Sure-Tan is a pre-IRCA case which reasons that because “the employment rela tionship between an employer and an undocumented alien is . . . not illegal under the [Immigration and Nationality Act (“INA”)], there is no reason to conclude that appli cation of the NLRA to employment practices affecting such aliens would necessarily conflict with the terms of the INA.” 24 Third, IRCA effected a monumental change in our country’s immigration policy by criminalizing the hiring of unauthorized aliens. Given Congress’ unequivocal declaration that it is il legal to hire unauthorized aliens and its mandate that em ployers immediately discharge unauthorized aliens upon discovering their undocumented status, we cannot reverse the district court’s grant of summary judgment in favor of TLLL To do so would sanction the formation of a statutorily declared illegal relationship, expose TLLI to civil and criminal penalties, and illogically create an en titlement simply because Egbuna applied for a job despite his illegal presence in this country and despite his having been statutorily disqualified from employment in the United States. In this instance, to rule Egbuna was en titled to the position he sought and to order TLLI to hire 23 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed,2d 732 (1984). 24 Id. at 893, 104 S.Ct. 2803. 8a an undocumented alien would nullify IRCA, which de clares it illegal to hire or to continue to employ unau thorized aliens. III. For the foregoing reasons, we affirm the district court’s grant of summary judgment. AFFIRMED ERVIN, Circuit Judge, dissenting: Because of the procedural posture of the case, we must assume that TLLI refused to hire Egbuna in retaliation for his participation in a co-worker’s Title VII action and that TLLI, when it engaged in its retaliation, was una ware that Egbuna was without authorization to work in this country. The question, then, is whether an undocu mented alien can ever prove a prima facie case of em ployment discrimination. Perceiving a conflict between IRCA’s proscription of hiring undocumented aliens and federal employment discrimination statutes, the majority holds that employers cannot be held accountable under Title VII for adverse employment actions taken against undocumented aliens. For a number of reasons, the ma jority’s analysis is misguided. First, there is no conflict between IRCA and Title VII. Nothing in IRCA suggests that Congress intended to limit the rights of undocumented aliens under federal labor and anti-discrimination laws. To the contrary, the legislative history explicitly cautions that IRCA should not be inter preted as extinguishing an undocumented alien’s rights under these statutes: [T]he committee does not intend that any provision of this Act would limit the powers of State or Fed eral labor standards agencies such as the . . . Equal Employment Opportunity Commission . . . to remedy unfair practices committed against undocumented 9a employees for exercising their rights before such agencies or for engaging in activities protected by these agencies. House Comm, on Educ. and Labor, H.R.Rep. No. 99- 682(11), at 8-9 (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5758.1 Because Egbuna was denied employment in retaliation for “engaging in activities protected by [the EEOC],” see id., I think it obvious, as a matter of con gressional intent, that IRCA does not operate as a bar to Egbuna’s claim. Second, the majority’s opinion defeats Congress’s desire to eradicate employment discrimination in which an em ployer retaliates against an employee, or former employee, for participating in a Title YII investigation. The perti nent question in anti-discrimination cases is whether the employer was motivated by a discriminatory animus at the time of the adverse employment action against the employee. This is the clear holding of a unanimous Su preme Court in McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). McKennon held that after-acquired evidence of a legitimate basis for an employee’s termination could not shield an employer from liability under the Age Discrimi nation in Employment Act (“ADEA”).1 2 The Court found that after-acquired evidence was relevant only to 1 This understanding of IRCA is echoed in the report for the House Committee on the Judiciary. See H.R.Rep. No. 99-682(1), at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662 (“It is not the intention of the Committee that the employer sanctions provi sion of the bill be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocu mented employees for exercising their rights before such agencies or for engaging in activities protected by existing law.”). 2 Analysis of the McDonnell Douglas burden-shifting scheme in ADEA cases applies with equal force to claims under Title VII. Gillins v. Berkeley Elec. Coop. Inc., 148 F.3d 413, 416 n.* (4th Cir. 1998). 10a the question of the remedy to which the employee was entitled. Id. at 360-62, 115 S.Ct. 879. The Court’s deci sion was based on the value of effectuating the purpose of the ADEA: “the elimination of discrimination in the workplace.” Id. at 358, 115 S.Ct. 879. “The disclosure through litigation of incidents or practices which violate national policies respecting nondiscrimination in the work force is itself important. . . . The efficacy of[the ADEA’s] enforcement mechanisms becomes one measure of the suc cess of the Act.” Id. at 358-59, 115 S.Ct. 879. Follow ing the Court’s reasoning in McKennon, TLLI should be held liable if it is found to have retaliated against Egbuna in violation of Title VII. The question of Egbuna’s work authorization is one that is pertinent only to the remedy to which he may be entitled, and not to whether TLLI acted with discriminatory animus in its employment deci sion making. Third, as the Eleventh Circuit observed in the context of the Fair Labor Standards Act (“FLSA”), enforcement of federal employment laws actually reinforces and strengthens laws, such as IRCA, that aim to stop illegal immigration. See Patel v. Quality Inn South, 846 F.2d 700 (11th Cir.1988). If the FLSA did not cover undocumented aliens, employers would have an incentive to hire them. Employers might find it economically advantageous to hire and underpay undocumented workers and run the risk of sanctions under the IRCA. . . . By reducing the incentive to hire such workers the FLSA’s coverage of undocumented aliens helps dis courage illegal immigration and is thus fully con sistent with the objectives of the IRCA. Id. at 704-05. The majority’s decision, in effect, relieves employers of their obligation to comply with federal em ployment laws, other than penalties under IRCA, with regard to any undocumented workers they might employ. This interpretation of IRCA may provide an employer 11a with an economic incentive to hire undocumented work ers and, therefore, not only fails to effectuate the anti- discrimination provisions of Title VII, but also works against IRCA’s goal of curtailing illegal immigration.3 Finally, the majority’s decision presumably reaches beyond Title VII and extinguishes an undocumented alien’s rights under the ADEA and the Americans with Disabilities Act, both of which require that an employee be “qualified” in order to hold an employer liable for un lawful discrimination. See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.1995) (requiring that appli cant prove “she was qualified for a job” as part of the ADEA prima facie case) (emphasis added); 42 U.S.C. § 12112(a) (1994) (providing that “[n]o covered entity shall discriminate against a qualified individual with a dis ability”) (emphasis added). Under the majority’s reason ing, I assume that undocumented aliens are also no longer considered to be “employees” for purposes of the National Labor Relations Act (“NLRA”) and the FLSA since the majority holds that IRCA “statutorily disqualifies any un documented alien from being employed as a matter of law.” Maj. op. at 187 (emphasis added). Such a view is not only at odds with Congress’s unambiguous intent, as articulated in the legislative history, but with every court that has considered IRCA’s effect on federal labor laws. See NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 56 (2d Cir.1997) (NLRA applies to to undocumented aliens); Del Rey Tortilleria, Inc. v NLRB, 976 F.2d 1115, 1121 (7th Cir. 1992) (NLRA applies to undocumented aliens); Patel, 846 F.2d at 704- OS (FLSA applies to undocumented aliens); EEOC v. Tortilleria “La Mejor”, 758 F.Supp. 585, 590-91 (E.D. Cal. 1991) (Title VII applies to undocumented aliens).4 3 The above three arguments are more fully set forth in my opinion for the panel in this case. See Egbuna v. Time-Life Libraries, Inc., 95 F.3d 353 (4th Cir.1996), vacated (Dec. 17, 1996). 4 While these cases disagree about the remedies that might be available to an undocumented alien, in particular whether IRCA 12a The majority’s decision is contrary to the unambiguous intent of Congress in IRCA as revealed in the legislative history, the antidiscrimination aims of Title VII, the im migration policy Congress sought to advance through IRCA, and the unanimous caselaw from our sister cir cuits. For these reasons, I respectfully dissent. I am authorized to state that Judges Murnaghan, Michael, and Motz join in this dissent. forbids a backpay award, compare A.P.R.A. Fuel Oil, 134 F.3d at 56-58 (awarding backpay) with Del Rey, 976 F.2d at 1121-22 (re fusing to award backpay), all these cases agree that undocumented aliens’ right to proceed under federal labor and anti-discrimination laws survives IRCA, 13a APPENDIX B UNITED STATES COURT OF APPEALS FOURTH CIRCUIT No. 95-2547 O biqra E . E g bu n a , Plaintiff-A ppellant, v. T im e -L if e L ib r a r ie s , I n c o r po r a t e d , Defendant-Appellee. E qual E m p l o y m e n t O p p o r t u n it y C o m m issio n , Amicus Curiae. Argued May 8, 1996 Decided Sept. 13, 1996 Before RUSSELL and ERVIN, Circuit Judges, and NORTON, United States District Judge for the District of South Carolina, sitting by designation. Reversed and remanded by published opinion. Judge ERVIN wrote the majority opinion, in which Judge NOR TON joined. Judge RUSSELL wrote a dissenting opinion. OPINION ERVIN, Circuit Judge: We must decide whether a Title VII plaintiff must demonstrate that he is eligible to work in the United States under the Immigration Reform and Control Act of 1986 to establish a prima facie case of employment discrimination. We find that work eligibility is not part of the prima facie case, and therefore reverse the district court’s summary judgment. I. Appellant Obiora Egbuna, a Nigerian national, was employed by appellee Time-Life Libraries (“TLLI”) from June 1989 until April 1993. When Egbuna was initially hired, he was authorized by the Immigration and Natural ization Service ( “INS”) to work in the United States. Harrison Jackson, a TLLI employee whom Egbuna super vised, reported to Egbuna that he had been sexually harassed by another employee; Egbuna cooperated with TLLI’s internal investigation and corroborated some of Jackson’s allegations. In April 1993, Egbuna voluntarily resigned from TLLI, but sought reemployment in June 1993. By this time, Egbuna’s authorization to work in the United States had expired, and in fact had expired before the end of his prior employment with TLLI. Al though the company apparently initially offered to rehire him, TLLI ultimately withdrew this offer, claiming that Egbuna had not followed company policy in reporting Jackson’s complaints. Egbuna sued TLLI, alleging that the company had re fused to rehire him because of his participation in en forcement proceedings related to Jackson’s complaints, in violation of Title VII, 42 U.S.C. § 2000e-3(a) (1988). The district court required Egbuna to prove that he was qualified for the position he sought in order to show that he was a victim of discrimination. Memorandum Opin ion, in Joint Appendix at 93-94 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Because Egbuna lacked employ ment authorization (a “green card”), he could not show that he was qualified, the court found. Accordingly, the court granted summary judgment for TLLI. Egbuna timely filed his notice of appeal; Fourth Circuit jurisdic tion thus lies under 28 U.S.C. § 1291. 15a II. Summary judgments are reviewed de novo on appeal. E. g., Higgins v. E.I. Du Pont de Nemours & Co., 863 F. 2d 1162, 1167 (4th Cir. 1988); Felty v. Graves-Hum- phreys Co., 818 F.2d 1126, 1127-28 (4th Cir. 1987). This appeal involves the interaction of two separate federal statutes. One is Title VII, which makes it unlaw ful to discriminate in employment. 42 U.S.C. § 200Ge et seq. The second is the Immigration Reform and Con trol Act of 1986 (“IRCA”), which makes it illegal to knowingly employ an unauthorized alien. 8 U.S.C.A. § 1324a(a)(l) (Supp.1996). We must decide whether an undocumented alien—ineligible to work under the IRCA—may bring a Title VII action for failure to hire. This is a question of first impression in this circuit. Egbuna sued TLLI under 42 U.S.C. §2000e-3(a), which provides that it is an illegal employment practice to discriminate against an applicant for employment “be cause he has opposed any practice made an unlawful em ployment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” This court has explained that the proof scheme set forth in McDonnell Douglas Corp. v Green 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), applies in § 2000e-3 retaliation claims.1 Ross v. Communications Satellite Corp., 759 F-2d 355, 365 (4th Cir. 1985). First, the employee must make out a prima facie case of retaliation by showing three elements: “1) the employee engaged in protected activity; 2) the employer took adverse employment action against the employee; and 3) a causal connection existed l This is an unusual case in that Egbuna alleges that the failure to hire was retaliatory. Usually, someone who is not hired does not have a prior relationship with the employer and the refusal to hire is alleged to have been discriminatory rather than retaliatory. 16a between the protected activity and the adverse action.” 2 Id. Once a prima facie case is established, the employer may proffer a legitimate, nondiscriminatory reason for its action, which rebuts the presumption of retaliation. Id. This shifts the burden back to the employee, who must show that the employer’s reason is pretextual. Id. TLLI concedes that Egbuna engaged in protected ac tivity, and that it did not rehire him. Thus, Egbuna has met the first two requirements of a prima facie case. TLLI argues that the only issue at the summary judg ment stage was “whether Egbuna, who could not have been hired by TLLI, can demonstrate a causal connection between the protected activity and TLLI’s failure to em ploy him.” Id. Egbuna argues that he has satisfied the minimal requirements of the prima facie case standard, including the third element, by alleging that “the Com pany declined to [rehire him] based solely upon his wit ness status.” As far as we can determine, only one other court has addresed the specific question before us here,3 and that 2 Although the Ross court explained that the illegal conduct must be the “but-for” cause of the challenged action in the retaliation context, the Civil Rights Act of 1991 amended Title VII to provide that a statutory violation has occurred if “race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (Supp. I l l 1991). The Civil Rights Act does not specifically address unlawful employment practices as defined by § 2000e-3(a), the statute under which Egbuna seeks recovery. 3 Before the enactment of the IRCA the Supreme Court acknowl edged that Title VII protects aliens against discrimination. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 340, 38 L.Ed.2d 287 (1973). In Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984), also decided before the IRCA, the Supreme Court held that undocumented aliens are considered “em ployees” within the definition of the National Labor Relaions Act. Id. at 892, 104 S.Ct. at 2808-09 (1984). The Sure-Tan Court specifically noted that the Immigration and Nationality Act (“INA”), which regulated entry into the United States, did not 17a court held that unauthorized aliens are protected under Title VII despite the provisions of the IRCA. EEOC v. Tortilleria “La Mejor”, 758 F.Supp. 585, 593-94 (E.D. Cal. 1991). An undocumented-alien employee filed a Title VII sex discrimination claim. Id. at 586. The court found that Title VII applied to undocumented aliens, and noted that the EEOC has always so construed the statute. Id. at 589. The court then considered whether the enact ment of the IRCA altered the scope of Title VII’s pro tections, and concluded that “Congress did not intend that the IRCA amend or repeal any of the previously legislated protections of the federal labor and employment laws ac corded to aliens, documented or undocumented, including the protections of Title VII.” Id. at 592-94; xee also EEOC v. Hacienda Hotel, 881 F.2d 1504, 1517 n. 10 & n. 11 (9th Cir. 1989) (assuming, without deciding, “that the undocumented workers in this case were entitled to the protections of Title VII,” but noting that the IRCA may well . . . change! ] the mix of policy considerations underlying the case law which supports our conclusion that undocumented employees may recover back pay in a Title VII action”). In a Fair Labor Standards Act (“FLSA”) case, the Eleventh Circuit found that the IRCA did not effect the FLSA’s application to undocumented aliens, in part based on the principle that “amendments by implication are dis favored.” Patel v. Quality Inn South, 846 F.2d 700, 704- OS (11th Cir. 1988), cert, denied, 489 U.S. 1011, 109 make it “unlawful for an employer to hire an alien who is present or working in the United States without appropriate authoriza tion.” Id. at 892-93, 104 S.Ct. at 2809. Because the INA did not prosciibe the relationship between employer and undocumented- alien employee, there was no conflict presented by applying both the INA and the NLRA. Id. at 893, 104 S.Ct. at 2809. In contrast to the INA, the IRCA prohibits employers from hiring employees without green cards, 8 U.S.C.A. § 1324a(a)(l), and requires verifi cation of each potential employee’s status, id. § 1324a(b). 18a S.Ct. 1120, 103 L.Ed.2d 182 (1989). That court con cluded that there was no policy conflict created by apply ing both statutes: Congress enacted the IRCA to reduce illegal immi gration by eliminating employers’ economic incentive to hire undocumented aliens. To achieve this objec tive the IRCA imposes an escalating series of sanc tions on employers who hire such workers. See 8 U.S.C. § 1324a. The FLSA’s coverage of undocu mented workers has a similar effect in that it offsets what is perhaps the most attractive feature of such workers—their willingness to work for less than the minimum wage. If the FLSA did not cover undocu mented aliens, employers would have an incentive to hire them. Employers might find it economically ad vantageous to hire and underpay undocumented workers and run the risk of sanctions under the IRCA. . . . By reducing the incentive to hire such workers the FLSA’s coverage of undocumented aliens helps discourage illegal immigration and is thus fully con sistent with the objectives of the IRCA. We there fore conclude that undocumented aliens continue to be “employees” covered by the FLSA. Id. at 705. The crux of TLLI’s argument rests on its claim that Egbuna was not qualified to work. The company argues that Egbuna’s lack of work authorization rendered him unqualified, resulting in an inability to make a prima facie case of retaliatory failure to hire; therefore, TLLI argues, it need not make any showing of its motive as required by the second stage of the McDonnell Douglas framework. But Egbuna argues that this court “should reject [TLLI’s] effort to shield its otherwise unlawful conduct by reference 19a to immigration law that it knowingly violated for a period of forty months.” 4 Both Egbuna and the EEOC, as amicus curiae, argue that the trial court should not have made work authoriza tion part of the prima facie case stage, but instead should have allowed TLLI to come forward with Egbuna’s un documented status at the second stage of the McDonnell Douglas paradigm, as the non-discriminatory motivation for its action. Then, Egbuna argues, he could at least demonstrate a material issue of fact as to whether TLLI’s proffered justification was pretextual: The parties’ long employment relationship, most of which occurred in violation of the IRCA, [and] the glowing recommendation for reemployment from the branch manager in July 1993 urging creation of a virtually unique position for appellant [] were ade quate to put in issue both whether the Company would have employed appellant in violation of immi gration law in July 1993 and whether in the circum stances the Company was likely to hold the position open pending appellant’s receipt of work authoriza tion. The EEOC argues that ineligibility to work under the IRCA “represents a potential legitimate, non-discrimina- tory reason for an employment decision”—not a basis for exclusion from the protections of Title VII—and “is relevant if the employer actually relied on it in making the decision.” Thus, work authorization should properly be considered not at the prima facie case stage, but rather at the second stage, “if and when the employer asserts it as the legitimate, nondiscriminatory explanation for the decision.” The plaintiff then has the opportunity to show ̂Under 8 U.S.C.A. § 1324a(a)(2), “ [ i] t is unlawful for a person or other entity, after hiring an alien for employment . . . , to con tinue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such em ployment.” 20a that the employer’s explanation is pretextual and that its actual motivation was discriminatory. The district court’s decision endorses a proof scheme that allows employers who have discriminated to be pro tected from their discrimination on the basis of informa tion on which they did not rely. In other words, here TLLI really does not claim that it failed to rehire Egbuna because of his undocumented status, but it nonetheless is shielded from its possible Title VII violations because Eg buna turned out to be undocumented. This is contrary to the Supreme Court’s decision in McKennon v. Nashville Banner Publishing Co., ------ U.S. ------ , 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), in which the Court held that, when an employee is fired for an illegal reason (there a violation of the ADEA), after-acquired evidence of a le gitimate basis for termination does not shield the employer for liability under the violated statute. Id. at ------ , 115 S.Ct. at 881. This case involves two separate issues, despite TLLI’s interest in collapsing the two. TLLI may very well have violated Title VII; and Obiora Egbuna did not have work authorization at the time he sought to be rehired by TLLI. Under the district court’s ruling, TLLI would escape all liability for its possible Title VII violation because of Egbuna’s undocumented status. That would be inappro priate. Instead, the parties should proceed through the McDonnell Douglas framework. TLLI may assert Eg buna’s lack of work authorization as a legitimate non- discriminatory basis for its decision, and Egbuna may at tempt to show that, the asserted basis is pretextual. III. We believe that the legislative effort to fight employ ment discrimination by protecting those who make or sup port allegations of im nr oner conduct is best served bv holding that a Title VII claimant need not show work authorization as part of the prima facie case. This con- 21a elusion does no damage to the distinct legislative decision to proscribe the hiring of undocumented workers under the IRCA. As the Eleventh Circuit noted, uniform appli cation of this nation’s labor laws removes a possible eco nomic incentive to hiring illegal workers. An applicant’s lack of work authorization remains a relevant considera tion; it may be proffered by an employer as the legitimate, nondiscriminatory reason for its action, and it may ulti mately be relevant to the question of remedies should a Title VII violation be established.5 We reverse the decision below and remand the case to the district court for further proceedings consistent with this opinion. REVERSED AND REMANDED. DONALD S. RUSSELL, Circuit Judge, dissenting: I respectfully dissent to the panel’s holding to remand this case so that the parties may litigate this question un der the McDonnell Douglas farmework. Under that frame work, an employee is not to be ordered employed unless he is qualified for the sought-after position. To be quali fied, an alien must possess the requisite employment au thorization. Egbuna is an alien without a green card. He therefore does not qualify for employment at Time-Life Libraries, Inc., and I do not think that, merely because he is an alien, the immigration laws should be held sub ject to Title VII. 5 See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 889, 902-03, 104 S.Ct. 2803, 2814-15, 81 L.Ed.2d 732 (1984) (reinstatement and backpay may not be appropriate for claimants who have been de ported and therefore are not “available for work”). Sure-Tan would not necessarily dictate that Egbuna could not be reinstated or recover backpay, however, because he received work authoriza tion only a short time after TLLI refused to rehire him. These factual questions are best left for the district court to consider on remand. 22a APPENDIX C [Filed Jul. 28, 1995] IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION Civil Action No. 95-197-A O biora E . E g b u n a , Plaintiff, v. T im e -L if e L ib r a r ie s , I n c ., Defendant. MEMORANDUM OPINION In this Title VII action, plaintiff asserts claims for dis crimination for testifying, assisting or participating in en forcement proceedings pursuant to 42 U.S.C. § 20Q0e- 3(a). Plaintiff alleges that defendant Time-Life Libraries, Inc. (“Time-Life”) refused to rehire plaintiff in retalia tion for opposing employment practices which plaintiff believed to be unlawful and for assisting another em ployee in challenging those employment practices. This action is before the court on Time-Life’s motion for sum mary judgment or in the alternative for partial summary judgment. Plaintiff is a Nigerian national who worked for Time- Life from 1989 through April 1993. When Time-Life hired plaintiff in 1989, plaintiff was authorized to work in this country. While plaintiff was employed at Time- Life, another employee, Harrison Jackson, complained to plaintiff that he had been sexually harassed. Plaintiff cooperated with the Time-Life internal investigation of 23a the Jackson claim and apparently corroborated some of Jackson’s allegations. Plaintiff then voluntarily resigned in April 1993, when he thought he was returning to Ni geria. It is uncontroverted that in June 1993, plaintiff applied to be rehired when he did not have authorization to work in the United States. On July 21, 1993, Time- Life notified plaintiff he would not be rehired. Plaintiff’s position is that even if Time-Life knew plain tiff did not have proper work authorization, Time-Life’s refusal to rehire plaintiff in July 1993 was in retaliation for plaintiff’s testimony in the Jackson investigation. Plaintiff further alleges that Time-Life initially offered to rehire plaintiff in July 1993 and then withdrew the offer. In December 1993, plaintiff received work authorization. Plaintiff seeks damages for past wages including wages for the time plaintiff was ineligible to work, compensa tion for emotional damages, and punitive damages. Time-Life’s position is that plaintiff was not authorized to work in the United States in July 1993 and therefore, not qualified to work. Time-Life also argues that under the Immigration Reform and Control Act Time-Life was not permitted to rehire plaintiff in July 1993. 8 U.S.C. § 1324(a). In a separate order, Time-Life’s motion for summary judgment will be granted. As plead, plaintiff complains he was discriminated against by Time-Life when Time- Life failed to rehire him in July 1993. The discrimination alleged is that he was not rehired because of his partici pation in a discrimination claim of sexual harassment. In order to maintain this action plaintiff would have to show that at the time he was not rehired, he was quali fied to perform the position for which he sought employ ment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This plaintiff cannot do because at that time he, as a foreign national, did not have an employment authorization card, a “green card.” The court is not per suaded that plaintiff can overcome this barrier by show- 24a mg that Time-Life could have hired plaintiff subject to his later obtaining an authorization or that Time-Life should have assisted plaintiff in obtaining authorization. That plaintiff did not obtain such authorization until De cember 1993, is more than just a bar to damages in the interim. The record is not clear as to whether the job was still available in December 1993, or whether it was brought to the attention of Time-Life in December 1993, that plaintiff was again eligible for employment. For these reasons, defendant’s motion for summary judgment will be granted and this action will be dismissed. / s / Albert V. Bryan, Jr. United States District Judge Alexandria, Virginia July 28, 1995 25a [Filed Jul. 28, 1995] APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION Civil Action No. 95-197-A O biora E . E g b u n a , Plaintiff, v. T im e -L if e L ib r a r ie s , I n c ., Defendant. ORDER For the reasons stated in the memorandum opinion this day filed, it is hereby ORDERED that defendant’s motion for summary judg ment of plaintiff’s Title VII claim is granted and this action is dismissed. / s / Albert V. Bryan, Jr. United States District Judge Alexandria, Virginia July 28, 1995 26a STATUTORY PROVISIONS INVOLVED 42 U.S.C. § 2000e. Definitions For the purposes of this subchapter— * * * * (f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political sub division. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States. * * * * 42 U.S.C. § 2000e-l. Applicability to foreign and reli gions employment (a) Inapplicability of subchapter to certain aliens and em ployees of religious entities This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institu tion, or society with respect to the employment of indi viduals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. * * * * APPENDIX E 27a 42 U.S.C. § 2ttO0e-2, Unlawful employment practices (a) Employer practices It shall be an unlawful employment practice for an employer— (1) to 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, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely af fect his status as an employee, because of such in dividual’s race, color, religion, sex, or national origin. * * $ * 42 U.S.C. § 20OOe-3. Other unlawful employment prac tices (a) Discrimination for making charges, testifying, assist ing, or participating in enforcement proceedings It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprentice ship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. * * * * 8 U.S.C. § 1324a. Unlawful employment of aliens (a) Making employment of unauthorized aliens un lawful (1) In general It is unlawful for a person or other entity— (A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h )(3 ) of this section) with respect to such employment, or (B) (i) to hire for employment in the United States, an individual without complying with the requirements of subsection (b) of this sec tion or (ii) if the person or entity is an agri cultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of Title 29) to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the re quirements of subsection (b) of this section. (2) Continuing employment It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has be come) an unauthorized alien with respect to such employment. * * * * (b) Employment verification system The requirements referred to in paragraphs (1)(B ) and (3) of subsection (a) of this section are, in the case of a person of other entity hiring, recruiting, or referring an individual for employment in the United States, the requirements specified in the following three paragraphs: 28a 29a (1) Attestation after examination of documentation (A) In general The person or entity must attest, under pen alty of perjury and on a form designated or es tablished by the Attorney General by regulation, that it has verified that the individual is not an unauthorized alien by examining— (i) a document described in subpara graph (B), or (ii) a document described in subpara graph (C) and a document described in subparagraph (D). A person or entity has complied with the re quirement of this paragraph with respect to examination of a document if the document rea sonably appears on its face to be genuine. If an individual provides a document or combination of documents that reasonably appears on its face to be genuine and that is sufficient to meet the requirements of the first sentence of this paragraph, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce such an other document. * * * * (4) Cease and desist order with civil money penalty for hiring, recruiting, and referral violations With respect to a violation of subsection (a )(1 ) (A) or (a )(2 ) of this section, the order under this subsection— (A) shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of— 30a (i) not less than $250 and not more than $2,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred, (ii) not less than $2,000 and not more than $5,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph, or (iii) not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously sub ject to more than one order under this paragraph; (f) Criminal penalties and injunctions for pattern or practice violations (1) Criminal penalty Any person or entity which engages in a pattern or practice of violations of subsection ( a) (1) (A) or (a)(2) of this section shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels. * * * * 8 U.S.C. § 1324c. Penalties for document fraud (a) Activities prohibited (1) It is unlawful for any person or entity know ingly— (1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfy- 31a ing a requirement of this chapter or to obtain a benefit under this chapter, (2) to use, attempt to use, possess, obtain, accept, or receive or to provide any forged, counterfeit, altered, or falsely made document in order to satisfy any requirement of this chapter or to obtain a benefit under this chapter, (3) to use or attempt to use or to provide or attempt to provide any document lawfully issued to or with respect to a person other than the possessor (including deceased individual) for the purpose of satisfying a requirement of this chap ter or obtaining a benefit under this chapter. * * * *