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Court of Appeal:
UC Policy on Undocumented Hirees Violates State Law
Writ Orders Regents to Reevaluate Its Practice in Light of Possible Showings That, If Made, Would Withstand Scrutiny; What Wont’s Suffice, Opinion Says, Is Justifying Position Based on Fear of Federal Reprisals
By a MetNews Staff Writer
The policy of the University of California not to hire undocumented workers unless they have federal work authorization is in contravention of California law and fear of reprisals by the government of the United States if it deviated from its practice is not a sufficient defense, Div. Four of the First District Court of Appeal declared yesterday, but stopped short of ordering that the rule be abandoned.
Rather, a writ was issued “directing the University to exercise its discretion in conformity with the principles articulated here to decide whether to continue use of its work authorization employment policy.”
The Regents of the University of California took the position that “potentially severe penalties and enforcement consequences from the federal government were it to hire undocumented students without federal work authorization” constitutes “a legitimate, nondiscriminatory” reason for the policy.
Goldman’s Opinion
Justice Jeremy M. Goldman wrote the opinion in which that argument is rejected. He said:
“The University has not cited, nor have we found, any authority suggesting that the continued use of an policy that is unlawful under state law can be justified solely on a determination that discontinuing the policy might result in significant harm to the students and employees of the University based on perceived risks of potential federal law violations, even reasonable risks based on a careful assessment of what positions federal actors might take.”
The policy, he explained, violates Government Code §12940, a portion of the Fair Employment and Housing Act, which renders it unlawful “[f]or an employer, because of the...national origin,…of any person, to refuse to hire or employ the person.”
Goldman declared that “refusing to hire undocumented students because they lack work authorization is discrimination based on immigration status.”
CCR Provision
He also pointed to 2 California Code of Regulations §11028(f)(3), saying:
“It is an unlawful practice for an employer or other covered entity to discriminate against an employee because of the employee’s or applicant’s immigration status, unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.”
The university has made no such showing, Goldman said, and has, to the contrary, “expressly taken no position on whether its policy is required by federal law.”
Affording it an opportunity to make such a showing, he set forth:
“Our writ does not require the University to take any specific action, let alone one that will necessarily place the University community at risk. The option the University identifies—a declaratory judgment suit against the federal government—is one that remains available to it in response to this writ. We merely require that the University not rely on litigation risk alone as the justification for its facially discriminatory policy.”
The case is Muñoz v. the Regents of the University of California, A171410.
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