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In
the first appellate court decision interpreting Hoffman Plastic Compounds v
NLRB, the U.S. Court of Appeals for the Ninth Circuit Court held that
Hoffman does not make immigration status relevant for determining whether an
employer is liable for a violation of Title VII of the Civil Rights Act (Title
VII). It found that the protective order granted by the lower court was
justified because of the grave “chilling effect that the disclosure of
plaintiffs’ immigration status could have on their ability to effectuate their
rights.”
Recognizing the harm that such a disclosure would have on undocumented
workers in general, the court noted, “[W]hile documented workers face the
possibility of retaliatory discharge for an assertion of their labor and civil
rights, undocumented workers confront the harsher reality that, in addition to
possible discharge, their employer will likely report them to the INS and they
will be subjected to deportation proceedings or criminal prosecution.”
This is an important legal victory for all workers at the two-year
anniversary of the Hoffman decision, particularly because of the court’s
understanding of that decision’s impact on both documented and undocumented
workers. (For more on the Supreme Court’s decision in Hoffman, 122 S.Ct.
1275 (2002), see “Supreme Court Bars Undocumented Worker from Receiving Back Pay
Remedy for Unlawful Firing,” Immigrants’
Rights Update, Apr. 12, 2002, p. 10.) The Ninth Circuit concluded
that “even documented workers may be chilled” by this type of discovery because
they “may fear that their immigration status would be changed, or that their
status would reveal the immigration problems of their family or friends;
similarly, new legal residents or citizens may feel intimidated by the prospect
of having their immigration history examined in a public proceeding. Any of
these individuals, failing to understand the relationship between their
litigation and immigration status, might choose to forego civil rights
litigation.”
In Rivera et al. v. Nibco, Inc., Magistrate Judge Snyder of
the Eastern District of California’s federal court in Fresno granted a
protective order to 23 Latina and Southeast Asian plaintiffs who had filed a
national origin discrimination claim under Title VII alleging language
discrimination (see “Court Grants Immigrant Workers Protective Order Regarding
Immigration Status,” Immigrants’ Rights Update, Aug. 31, 2001, p. 14). The
protective order prohibited the defendant, Nibco, from asking questions about
the plaintiffs’ immigration status or other related questions, including their
place of birth.
Since there was no dispute that these workers were members of a protected
class under Title VII, the lower court found their birthplaces to be irrelevant
to the case. The order did allow for questions regarding their place of
marriage, educational and employment background, date of birth, and criminal
convictions. However, the magistrate limited disclosure of any of the
information obtained through these questions to the attorneys and parties only,
meaning it could not be revealed to third parties such as governmental
agencies. Nibco filed a motion for reconsideration, which was denied by Judge
Ishii of the district court, although he certified the defendant’s interlocutory
appeal to the Ninth Circuit, which held that the protective order was neither
erroneous nor contrary to law.
The appellate court also rejected the defendant’s principal argument that
Hoffman prohibits any award of back pay to undocumented workers, and
therefore that knowing who is undocumented among the plaintiffs is critical to
its defense. The Ninth Circuit questioned whether Hoffman even extends
to Title VII cases as the defendant asserts, given the differences between the
National Labor Relations Act (NLRA)—the statute that was at issue in the
Hoffman decision—and Title VII.
First, the court pointed out that unlike the NLRA, which is enforced
primarily by the National Relations Board (NLRB), Title VII relies for its
enforcement principally on private actions (complaints and lawsuits) filed by
workers. Second, unlike under the NLRA, Title VII plaintiffs are entitled to a
broad range of remedies designed to make the plaintiff whole as well as to
punish the employer and deter future discriminatory acts. The remedies under
Title VII include traditional ones such as reinstatement, back pay, and front
pay, as well as full compensatory and punitive damages that are not available
under the NLRA. Third, under the NLRA it is the federal agency charged with
enforcing the law—the NLRB—that awards back pay to a worker if the employer is
found liable. In the Title VII context, it is the federal court system that
awards remedies after liability is found. The Equal Employment Opportunity
Commission (EEOC) also has broad authority. The Ninth Circuit found this to be
a significant factor in distinguishing Hoffman’s impact on Title VII
cases, since the Supreme Court specifically questioned the NLRB’s authority to
award remedies that might conflict with the Immigration and Nationality Act.
While the NLRB is limited to awarding remedies under its statute, federal courts
do have the authority to interpret two different statutes and to award remedies
that are consistent with two different statutes such as the INA and Title VII.
The Ninth Circuit also rejected Nibco’s argument that under the
“after-acquired evidence” doctrine the court was required to facilitate its
discovery into any evidence that could limit the remedies available to these
plaintiffs if it found that they were indeed undocumented. The court clarified
that the “after-acquired evidence” doctrine precludes or limits the remedies a
plaintiff may receive if the employer later discovers that the worker engaged in
misconduct, but only if the employer can prove that it would have fired the
employee for that misconduct had the employer learned of it while she was still
working. In the landmark decision developing this doctrine, McKennon v.
Nashville Banner Publishing Co., 513 U.S. 352 (1995), the Supreme Court
concluded that, “as a general rule in cases involving after-acquired evidence of
wrongdoing, neither reinstatement nor front pay is an appropriate remedy,” and
that back pay should be awarded only from the date of the employer’s unlawful
conduct until the date the information of the worker’s misconduct is
“discovered.” The Ninth Circuit concluded that “McKennon did not hold
that depositions could be conducted for the purpose of uncovering illegal
actions” by the workers.
While the Rivera court did not reach the decision of whether
Hoffman applies to Title VII cases, the court held that it is clear that
Hoffman does not make immigration status relevant to a finding that an
employer engaged in national origin discrimination under Title VII, and
therefore it does not require a court to allow discovery into plaintiffs’
immigration status.
Copies of the underlying protective order and briefs can be obtained by
contacting Marielena Hincapié at hincapie@nilc.org.
Rivera et al., v. Nibco, Inc.,
364 F.3d 1057 (9th Cir. 2004).
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