The Trafficked Worker as Private Attorney General: A Model for Enforcing the Civil Rights of Undocumented Workers

Authors

Kathleen Kim, Loyola Law School, Los AngelesFollow

Comments

Article version of presentation for the First Annual Interdisciplinary Conference on Human Trafficking, Lincoln, Nebraska, October 29, 2009.
To be published in University of Chicago Legal Forum (Forthcoming), as Loyola-LA Legal Studies Paper No. 2009-28
At the author's request, this document is not archived here, but is linked to the version at http://ssrn.com/abstract=1448832

Abstract

This Article seeks to prioritize the civil workplace rights of undocumented immigrants over the goals of immigration enforcement by placing primacy on the role of the immigrant undocumented worker as private attorney general. In developing this concept, this Article draws from the legal framework addressing human trafficking.

In theory, undocumented workers victimized by exploitive employment practices may act as private attorneys general in the enforcement of workplace harms and may sue their employers under many of the same civil rights laws that protect citizen workers. Regardless of whether workers are foreign-born, the substantive guarantees of our civil rights laws protect all workers against exploitation. The Thirteenth Amendment guarantees freedom from slavery and involuntary servitude, the Equal Protection Clause of the Fourteenth Amendment provides all individuals with equal protection of the laws, and various civil rights statutes, most prominently the Civil Rights Act of 1964, prohibit discrimination in a variety of settings. In practice, however, the goals of immigration enforcement take precedence over the individual rights of undocumented workers. These workers are often deported and deprived of access to civil courts. As a result, workplace violations are not prosecuted and basic workplace protections are undermined. Consequently, both the workers and the nation suffer deterioration in civil rights.

In the human trafficking context, undocumented workers forced to labor in exploitive conditions may sue their traffickers and may also obtain immigration status pursuant to the Trafficking Victims Protection Act, thereby ameliorating the divergent goals of immigration enforcement and civil rights laws that adversely impact other undocumented workers. This Article examines the ways in which the trafficked plaintiff fulfills the role of private attorney general by not only obtaining individual relief, but by also vindicating important societal interests in the advancement of constitutional and civil rights. A comparative analysis of litigation in the undocumented worker context demonstrates similar individual and societal benefits. This analysis supports an additional policy objective: The trafficked worker as private attorney general represents a model of civil rights enforcement. If replicated by other undocumented victims of workplace abuse, this model would allow these victims, unimpeded by restrictive immigration laws, to advance civil rights imperatives.