Thread: Immigration Status Not A Bar To Civil Rights Claims

Wilson Elser Moskowitz Edelman & Dicker
United States: Immigration Status Not A Bar To Illegal Aliens Filing Civil Rights Claims Against Their Employers

01 August 2007

Article by Susan Karlovich
Recent cases make clear that immigration status does not preclude illegal workers from pursuing claims against their employers. As such, U.S. employers are just as susceptible to being sued by illegal aliens as they are by workers here legally.

Background

In a recent U.S. District Court case in Minneapolis, Minnesota, Maria Torres and the U.S. Equal Employment Opportunity Commission ("EEOC") filed a harassment and retaliatory discharge lawsuit against her employer, Perkins Restaurant and Bakery ("Perkins"), alleging that Perkins improperly investigated Torres’ immigration status only after she complained about sexual harassment. EEOC v. The Restaurant Company, 2007 U.S. Dist. LEXIS 39887 (D. Minn., May 31, 2007). Torres claimed to be subject to sexual comments and inappropriate touching by her boss, which culminated in him showing up at her home. According to court documents, when Torres rebuffed his advances, she claimed he treated her more severely than other cooks by increasing her workload, cutting her hours and by threatening to report her as an undocumented worker if she complained.

After Torres reported this to senior managers at Perkins, an investigation ensued wherein Torres admitted she had not complained earlier because she feared her boss would contact immigration officials and have her deported. Perkins then placed Torres on leave of absence until such time as she could produce proof of her legal presence in the United States.

Torres then filed a charge with the EEOC which, in turn, filed a lawsuit alleging that Perkins violated Title VII of the Civil Rights Act., 42 U.S.C. §2000e et seq. by subjecting Torres to sexual harassment and retaliatory discharge. After a magistrate judge granted Perkins’ motion to compel discovery related to Torres’ immigration status, the EEOC appealed, seeking a protective order barring discovery into her immigration status.

First Decision

While Perkins argued that information regarding Torres’ immigration status was relevant to its case, the U.S. District Court disagreed, noting that discovery regarding the immigration status of plaintiffs in civil rights cases generally has been prohibited since it is irrelevant to the issue of whether the employer discriminated against the plaintiff. Secondly, the court reasoned that permitting employers to use the discovery process to inquire into workers’ immigration status would have an unacceptable chilling effect on the bringing of civil rights actions, which could result in "countless acts of illegal and reprehensible conduct" going unreported. Lastly, the court noted that employers have a "perverse incentive to ignore immigration laws at the time of hiring but insist upon their enforcement when their employees complain." Since the relevancy of Torres’ immigration status had not been established, the U.S. District Court found that the lower court’s ruling was contrary to law and reversed the ruling permitting discovery of Torres’ immigration status.

Second Decision

In opposition to the EEOC and Torres’ motion for summary judgment, the defendant argued that Torres had lack of standing to bring suit under the federal civil rights laws as an undocumented alien. Since under the Immigration Reform and Control Act, 8 U.S.C. §1324a(a)(2), an employer is compelled to discharge employees upon discovery of their undocumented status, the defendant asserted that Torres was not an "employee" protected by Title VII. The defendant further argued that Torres was not entitled to any form of damages that would not have accrued but for her initial misconduct that led to her being hired. In rejecting these arguments, the U.S. District Court noted that Congress intended to empower individuals to act as private attorneys general in enforcing the provisions of Title VII and that every court that considered the issue concluded that undocumented workers have standing in their own right to obtain relief.

In considering the plaintiff’s hostile work environment claim, the court found a reasonable jury could find the harassment severe and pervasive enough to constitute an actionable hostile work environment claim. And while the court did not deem additional work duties to constitute a tangible, adverse employment action, whether the denial of a promotion was the result of sexual harassment was found to be a fact issue to be decided by a jury.

Lastly, the court found that a reasonable jury could find that the defendant retaliated against Torres, since it was only after she complained of sexual harassment that Perkins made allegations about her documentation. Accordingly, the court denied the defendant’s motion for summary judgment on the retaliation claim.

The Trend

Just as illegal aliens have a right of access to the court for civil rights claims, New Jersey has long held that illegal alien workers have a right to workers’ compensation benefits. In Mendoza v. Monmouth Recycling, 288 N.J. Super. 240 (1996), the New Jersey Appellate Division reversed the dismissal of an illegal alien’s claim for worker’s compensation benefits. The New Jersey court noted that the petitioner’s injury and right to medical treatment as an incident of his or her employment did not derive from or depend upon immigration status. Moreover, a rule of law denying workers’ compensation to an illegal alien is more likely to encourage than to deter employers in employing illegal aliens.

Other states that have considered the issue in the absence of an "availability for work" requirement in their workers’ compensation statutes have uniformly afforded illegal aliens a compensation right, in such venues as Florida, Texas and New York. Gene’s Harvesting v. Rodriguez, 421 So.2d 702 (Fla. Dist. App. 1982); Commercial Standard Fire & Marine Co. v. Galindo, 484 S.W.2d 635 (Tex. Civ. App. 1972); Testa v. Sorrento Restaurant, Inc., 10 A.D.2d 133, 197 N.Y.S.2d 560 (N.Y. App. Div. 1960).

This trend does not, however, extend to unemployment compensation. Illegal, undocumented aliens who are not authorized to work, or are awaiting pending work authorization, are not entitled to unemployment compensation pursuant to N.J. Stat. Ann §43:21-4(i)(1). This is because the claimant’s availability for work has always been a prerequisite for eligibility for unemployment compensation. Since an illegal alien is prohibited by law from accepting a new job, that person is deemed unavailable for work, not temporarily unemployed, and thereby not qualified for unemployment compensation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


Specific Questions relating to this article should be addressed directly to the author.

http://www.mondaq.com/article.asp?articleid=50866

How can people that have broken immigration laws and are not under the jurisdiction of the government file civil suits? If anyone can file suit against anyone in any country this will create a bonanza for lawyers. Maybe that's it after all...lawyers padding their pocketbook. Hmm, looks like it comes down to money again. Our legal system as well as our government supports rule by the rich!