Immigration status is irrelevant to Title VII claim, Ninth Circuit rules.

An employer may not use discovery to inquire into former employees' immigration status in Title VII cases, the Ninth Circuit has ruled. The court upheld a magistrate judge's protective order, which stated that allowing employers to obtain such information would chill plaintiffs' willingness and ability to bring civil rights claims. (Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004).)

The dispute arose in a national-origin discrimination case filed under Title VII and the California Fair Employment and Housing Act. The plaintiffs are 23 Latina and Southeast Asian women who are former employees of NIBCO, a manufacturer of irrigation products in Fresno.

"What gave rise to the appeal was that in the first deposition of our clients, the very first questions asked by the defendant were not related to the merits of the case," said plaintiff counsel Christopher Ho, senior staff attorney at the Le gal Aid Society-Employment Law Center in San Francisco. "They asked, 'Where were you married?,' 'When did you come to the United States?,' 'What is your citizenship status?'--which were absolutely irrelevant."

The plaintiffs sought a protective order barring the defendant from asking questions directly related to immigration status and limiting questions that might relate indirectly, said Ho. The magistrate judge granted the order, and a district judge affirmed it.

NIBCO filed a motion to certify the discovery issue for interlocutory appeal after the district court denied its request to reconsider the magistrate's ruling. Before the court could rule on the motion, however, the U.S. Supreme Court decided Hoffman Plastic Compounds v. NLRB, which held that undocumented workers were not entitled to back pay under the National Labor Relations Act (NLRA). (535 U.S. 137 (2002) .) Encouraged by the ruling, NIBCO filed a second motion to reconsider.

"The defense went back to the district court and said, 'Look, Hoffman obviously means for all statutory schemes for all purposes, undocumented workers need to be treated differently,'" Ho said. "They almost went so far as to suggest that our clients had no right at all to bring a Title VII claim, which is inaccurate."

The district court again affirmed the protective order but certified the discovery issue for interlocutory appeal. In reviewing the case, the Ninth Circuit noted that the precise question before the Supreme Court in Hoffman, was whether the National Labor Relations Board had the authority under the NLRA to award back pay to undocumented workers, even though hiring such workers violates the Immigration Reform and Control Act (IRCA) of 1986. The Court ruled that because the policy goals of IRCA outweigh those of the NLRA, the immigration act precluded any back pay award to undocumented immigrants under the labor act.

But the Ninth Circuit declined to apply Hoffman to Title VII claims. "NIBCO would have us ... hold that: (a) Hoffman precludes any award of back pay to an illegal immigrant, no matter what federal statute the employer may have violated; and (b) the district court is required to grant the request for pretrial discovery of the plaintiff's immigration status," Judge Stephen Reinhardt wrote for the majority. "We seriously doubt that Hoffman is as broadly applicable as NIBCO contends, and specifically believe it unlikely that it applies in Title VII cases. The NLRA and Title VII are different statutes in numerous respects. Congress gave them distinct remedial schemes and vested their enforcement agencies with different powers."

The underlying law suit arose after NIBCO's new owners required the plaintiffs--all of whom speak limited English--to take a job-skills test. After the plaintiffs performed poorly on the exam--which was offered only in English--and even though they had done their jobs successfully until then, the company allegedly took various adverse employment actions against the plaintiffs and eventually terminated them.

Although several district courts have addressed Hoffman, Ho said, Rivera is the first decision by an appeals court to do so.

"After Hoffman came down, employers were seizing upon it as providing them with a slippery-slope argument that undocumented workers had no rights at all, no remedies," Ho said. "The language in Rivera, although arguably dicta, puts a brake on this argument that Hoffman means total obliteration of immigrant workers' rights."

NIBCO has asked for an en banc rehearing of the appeal.