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EMPLOYERS CANNOT ASK ABOUT IMMIGRATION STATUS IN DISCRIMINATION AND CIVIL RIGHTS CASES

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Article 17-12

¡No Se Deje!

 

An undocumented immigrant filed a federal complaint against her employer for sexual harassment.  In the complaint, filed with the Federal Equal Opportunity Commission (EEOC), she claimed that she was repeatedly subjected to sexual harassment by her supervisor.  She also claimed that after she complained about the sexual harassment, her employer insisted that she prove her immigration status to them and that they ignored her harassment complaint.  She was then summarily terminated from her job.

 

Attorneys at the Federal Equal Employment Opportunity Commission (EEOC) filed a lawsuit in the Federal District Court against her employer, “The Restaurant Company/Perkins Restaurant”, for employment discrimination and sexual harassment. Attorneys for the restaurant argued that the employer is authorized and required to terminate someone that is undocumented and therefore not authorized to work.  It also insisted that the victim’s immigration status is relevant and necessary to its case.  The judge disagreed.

 

Federal Judge John R. Tunheim wrote in his official decision:

DISCOVERY REGARDING THE IMMIGRATION STATUS OF PLAINTIFFS (claimants) IN CIVIL RIGHTS CASES IS GENERALLY PROHIBITED…FIRST, THE IMMIGRATION STATUS IS USUALLY NOT RELEVANT TO THE ISSUE OF WHETHER THE EMPLOYER DISCRIMINATED, AND SECOND, PERMITTING EMPLOYERS TO USE THE DISCOVERY PROCESS TO INQUIRE INTO A WORKER’S IMMIGRATION STATUS WOULD HAVE AN UNACCEPTABLE CHILLING EFFECT ON THE BRINGING OF CIVIL RIGHTS ACTIONS, WHICH WOULD RESULT IN COUNTLESS ACTS OF ILLEGAL AND REPREHENSIBLE CONDUCT GOING UNREPORTED.

 

John Hendrickson, the EEOC attorney that represented the immigrant victim said “The attorneys for the restaurant decided that a good way to defend a sexual harassment case would be to go after the victim on immigration related issues.  The EEOC challenged that with the obvious proposition that a victim’s immigration status does not tell anyone anything about whether the employer is permitting sexual harassment of its employees.  We do not permit parties to attempt to intimidate and scare people away from our courts by the pursuit of potentially damaging but entirely unrelated, irrelevant and immaterial information.”

 

The judge added that the attorneys for the restaurant had not identified even one case where a federal judge had permitted an employer to inquire into the immigration status of claimants in similar cases.  He also stated that to the contrary, federal courts that have decided similar cases have not permitted defendant employers to use the judicial discovery process to delve into the claimants’ immigration status.”

 

EEOC attorney Tina Burnside, who also worked on the case, said “It is no secret why defense attorneys decide to make a big issue out of the immigration status.  They figure that there is a chance that they can put such fear into the hearts of the victims that they will walk away.  This line of inquiry has nothing to do with the merits in employment discrimination cases.  It is good that the courts are seeing through it and are not permitting it.”

 

Undocumented immigrants can feel more confident that the law will not permit their immigration status to allow guilty people to go unpunished.  Always consult an attorney to consider the best way to protect and assert your rights.  ¡NO SE DEJE! ®

 

JESS J. ARAUJO, ESQ.