Metropolitan News-Enterprise


Wednesday, April 14, 2004


Page 1


Ninth Circuit Rules:

Title VII Plaintiff Not Required to Disclose Immigration Status


By KENNETH OFGANG, Staff Writer/Appellate Courts


A protective order allowing 23 terminated workers at a Fresno factory to sue for national-origin discrimination without disclosing their immigration statuses was upheld yesterday by the Ninth U.S. Circuit Court of Appeals.

U.S. District Judge Anthony W. Ishii of the Eastern District of California was correct in concluding that discovery into a person’s immigration status would likely deter that person, as well as others, from bringing meritorious claims, Judge Stephen Reinhardt wrote for the appellate panel.

“There are reportedly over 5.3 million workers in the ‘unauthorized labor’ force,” Reinhardt explained. “...Many of these workers are willing to work for substandard wages in our economy’s most undesirable jobs. While 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.”

Past Cases Cited

The jurist cited past federal cases in which employers with prior knowledge of workers’ immigration status notified the INS after the workers voted in favor of union representation or sought to collect unpaid wages or enforce the minimum-wage laws.

“The chilling effect such discovery could have on the bringing of civil rights actions unacceptably burdens the public interest,” Reinhardt wrote.

The plaintiffs in the case ruled on yesterday are former employees of NIBCO, Inc., an Indiana-based manufacturer of flow-control products such as pipes, tubes, fittings, and valves, and are all women of Latin or Southeast Asian origin. They claim that the company discriminated against them by forcing them to take English-language proficiency tests, even though their jobs did not require them to speak English well, and that they were eventually terminated.

NIBCO said it had no desire to disclose the plaintiffs’ immigration statuses outside of the court action but that it needed the information to defend itself against the plaintiffs’ claims for backpay. The company cited Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), holding that the National Labor Relations Board could not award backpay to undocumented aliens in a proceeding for violation of the National Labor Relations Act.

But Reinhardt said NIBCO had not shown that the protective order was “clearly erroneous or contrary to law,” which is the standard for reversal of a discovery order.

It is not at all clear, Reinhardt said, that Hoffman bars backpay awards under Title VII. The purpose of the ban on employment discrimination may justify remedies not authorized in other cases, and Hoffman could be read as applying only to remedies awarded by an administrative agency rather than a court, the judge reasoned.

Judge’s Discretion

Even if Hoffman does apply, Reinhardt went on to say, a district judge has discretion to structure discovery in such a way as to minimize the burden on the plaintiffs. Ishii could, for example, bifurcate the proceedings, try the issue of liability first, and then conduct in camera proceedings to determine whether any of the plaintiffs are ineligible and adjust the final award accordingly, the appellate jurist explained.

Reinhardt was joined by Judge Michael Daly Hawkins. Sixth Circuit Senior Judge Eugene E. Siler Jr., concurring separately, emphasized the broad nature of trial court discretion over discovery issues and said the applicability of Hoffman is an issue properly reviewed on appeal from the final judgment rather than on an interlocutory appeal from a protective order.

The case is Rivera v. NIBCO, Inc., 02-16532.


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