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

    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.

* * * *