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FEDERAL COURT ALLOWS UNDOCUMENTED WORKER TO SUE

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Article 16-41

¡No Se Deje!

An undocumented immigrant woman, working as a cook for Perkins Restaurant and Bakery, complained to her employer about being sexually harassed by a supervisor.  During the investigation of the sexual harassment complaint, the employer discovered that the worker’s Social Security number was not issued to her name.  The supervisor that had sexually harassed the worker only received a warning while the victim of the sexual harassment was terminated.

 

Under Title VII of the 1964 Civil Rights Act, it is illegal to discriminate based on a person’s race, color, religion, sex, national origin, pregnancy, age, or disability.  Sexual harassment is considered sex discrimination.  The Federal Equal Employment Opportunities Commission and State Fair Employment Agencies can sue employers for unlawful discrimination.  Individuals may also sue employers directly but must first file a discrimination complaint with the EEOC within 180 days of knowing of the discrimination.

 

The attorneys for the restaurant asked the judge to dismiss the lawsuit because she was undocumented and had been fired because immigration law made it was illegal for her to work. Federal Judge, John R. Tunheim, refused to dismiss the lawsuit stating that even undocumented workers can sue under the Title VII anti-discrimination laws.  The judge stated that:

  • Inquiring into the immigration status of plaintiffs in Civil Rights cases is generally prohibited.
  • The immigration status is usually not relevant to the issue of whether the employer discriminated unlawfully against the plaintiff.
  • Permitting employers to inquire into the immigration status of their workers would intimidate them and have an unacceptable “chilling effect” on their willingness to file Civil Rights lawsuits.
  • Permitting inquiry into immigration status would result in countless acts of illegal and reprehensible conduct going unreported.

 

The EEOC attorney in the case, John Hendrickson said that the attorneys for the restaurant decided to defend against the sexual harassment lawsuit by attacking the victim for her immigration status.  He successfully argued that the victim’s immigration status does not provide any information or evidence about the employer permitting sexual harassment of its employees.  He also said that we cannot allow lawyers to “pursue wildly irrelevant lines of inquiry especially when…the result might be to scare people away from challenging illegal conduct.

 

This case reveals a tactic that is used often against undocumented workers.  When they complain about being the victims of illegal actions, the guilty parties go after them because they are undocumented.  In this case, when the victim complained about the sexual harassment, the employer investigated her immigration status instead of the sexual harassment.

 

This case is very important to the immigrant community.  Immigrants know that their immigration status is often used against them to deprive them of benefits such as salary owed to them, salary increases, overtime pay, and promotions to higher job classifications, which also pay more. Landlords often refuse to return deposits on apartment rentals and contractors often refuse to pay immigrant subcontractor money they are owed under construction contracts.  This case is just one of many in which Federal Courts have declared that undocumented immigrants have the right to sue for damages, injuries, contract rights, and many other benefits under the law and that their immigration status will not be considered. 

 

ALWAYS CONSULT WITH AN ATTORNEY AS SOON AS POSSIBLE IF YOU BELIEVE THAT YOUR RIGHTS HAVE BEEN VIOLATED OR IF SOMEONE TREATS YOU UNFAIRLY.  ¡NO SE DEJE! ®

 

JESS J. ARAUJO, ESQ.