Lopez v. Superflex, Ltd.: Employee Can Make ADA Claim without Pleading Work Authorization, but Action Could...

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

LOPEZ V. SUPERFLEX, LTD.: EMPLOYEE CAN MAKE ADA CLAIM WITHOUT PLEADING WORK AUTHORIZATION, BUT ACTION COULD LEAD TO ADVERSE INFERENCE ABOUT IMMIGRATION STATUS
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

A federal judge in New York has ruled that a worker was not required to state in his complaint that he is authorized to work in the United States in order to bring a claim under the Americans with Disabilities Act (ADA).

Antonio Lopez, the plaintiff in Lopez v. Superflex, Ltd., was fired after he began receiving kidney dialysis treatment. At a pretrial conference held after Hoffman Plastic Compounds v. National Labor Relations Board was decided, Lopez amended the complaint and withdrew his claims for back pay and reinstatement. In allowing Lopez to proceed with his ADA claim, the court noted that the "[p]laintiff's decision to withdraw his back pay and reinstatement claims does not itself constitute an admission that the plaintiff lacks work authorization." However, it warned that "his refusal to answer any questions about his status could lead to an adverse inference as to his status."

Because no information regarding Lopez's immigration status had been entered into evidence at that point, the court refused to address whether undocumented workers have standing to bring claims under the ADA after Hoffman (defendants argued that they do not). The court cautioned, however, that "if Hoffman Plastic does deny undocumented workers the relief sought by plaintiff [and Lopez is found to be undocumented], then he would lack standing." The court also noted that if Lopez were to admit being in the U.S. illegally, or were to refuse to answer questions regarding his immigration status, then the issue of his standing would be considered before the court. In that case, "it could result in a judicial finding that plaintiff is illegally residing in the United States and therefore subject to deportation."

This decision is troubling because it appears to be adopting the reasoning of the Fourth Circuit Court of Appeals, which has held that undocumented workers are not covered by Title VII or the Age Discrimination in Employment Act (ADEA). (See Egbuna v. Time Life, 153 F.3d 184 (4th Cir. 1998) (in a failure-to-hire case, the court held that individuals who are not authorized to work are not "qualified" for employment and therefore cannot bring an action under Title VII); and Reyes-Gaona v. NCGA, 250 F.3d 861 (4th Cir. 2001) (a Mexican national applying for a job as a temporary worker under the H2-A program was not covered by the ADEA, since it does not protect individuals in a foreign country).) This reasoning conflicts with that adopted by other federal courts of appeal, and with the Equal Employment Opportunity Commission's interpretation of Hoffman. According to the EEOC, Hoffman "in no way calls into question the settled principle that undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work." (For a fuller explanation of the EEOC's view of Hoffman, see "Federal Agencies Clarify Limited Impact of Hoffman Plastic Decision," Immigrants' Rights Update, July 29, 2002, p. 13.)

Finally, this is the first post-Hoffman decision to call into question whether undocumented workers are protected by a particular statute-in this case, the ADA. Indeed, even under the National Labor Relations Act (NLRA)—the statute at issue in Hoffman—it is clear that undocumented workers continue to be protected and therefore can organize, join, elect, and participate in a union.

Lopez v. Superflex, Ltd., 2002 U.S. Dist. LEXIS 15538 (S.D.N.Y. August 21, 2002).