Illegal Alien Status Is Not a Protected Category under Title VII

On May 21, 2012, the United States Court of Appeals for the Seventh Circuit addressed whether Title VII applies to discrimination claims brought by the spouse of a Mexican citizen based upon the allegation that she suffered an adverse employment action because of her husband’s alienage.

In 1997, Javier Cortezano illegally entered the United States, he met Kristi some time later, and they married in 2001. Approximately six years later, Salin Bank hired Kristi as a Manager in Training. She performed quite well, was promoted to Bank Sales Manager and was then transferred to a more profitable location. During this timeframe, Javier attempted to start a car detailing and repair business. He obtained an individual tax ID number and opened a business banking account at Salin Bank, with Kristi as a joint owner on the account. The business failed, and Javier returned to Mexico in December 2007 to work on his citizenship status.

Around that time, Kristi disclosed Javier’s unauthorized status to her supervisor, Stacy Novotny, at Salin Bank. Novotny called Salin Bank’s security officer, Mike Hubbs, and told him that Kristi had joint accounts at the bank with a known undocumented alien. Concerned that this arrangement might implicate laws against bank fraud, Hubbs scheduled a meeting with Novotny and Kristi for February 11, 2008.

During this meeting, Kristi admitted that Javier had illegally entered the United States and indicated that he was in Mexico trying to obtain a visa or U.S. citizenship. Unconvinced by Kristi’s statements, Hubbs advised her that he would be filing an internal Suspicious Activity Report. On February 19, 2008, Kristi and her attorney attempted to attend a scheduled meeting with Salin Bank regarding the ongoing investigation; however, Salin Bank refused to permit Kristi’s attorney to attend the meeting and they subsequently left. That afternoon, Salin Bank sent a letter to Kristi terminating her employment for refusing to participate in the meeting.

Kristi then filed suit against Salin Bank alleging, among other claims, national origin discrimination based on her marriage to a Mexican citizen whose residence in the United States was unauthorized.

The court held that, even assuming that Title VII applies to discrimination against one’s spouse (which is undecided in the Seventh Circuit), Kristi’s claim falls short because it is based on Javier’s alienage, which is not protected by the statute. More specifically, the court noted that national origin discrimination encompasses discrimination based on one’s ancestry, but not discrimination based on citizenship or immigration status. As such, Title VII does not protect against alienage-based discrimination and Kristi’s claim in this regard is unsustainable.

Consistent with this decision, it is important to note that while several courts have found Title VII discrimination claims viable even though the alleged discrimination takes place against a person’s spouse or partner and not the complaining party (“associational discrimination”), the underlying discrimination itself must still fall into a protected category to be protected by the statute.

Contact: Jaime A. Maurer


Employers: Complete Form I-9 with Caution to Avoid Employee Document Abuse Claims

Typically, employers dedicate numerous man-hours ensuring that their employees are eligible to work in the United States. In order to ensure compliance, they use the Employment Eligibility Verification Form, or Form I-9. The form appears easy to complete, but there are many ways to complete it incorrectly. The dramatic increase in Form I-9 audits by the U.S. Immigration and Customs Enforcement (ICE) finds many employers eager to satisfy their legal obligations, but, in the process, they inadvertently commit one less-known prohibited act under the Immigration Reform and Control Act of 1986 (IRCA): document abuse. This violation is often the result of an employer’s zealous efforts to determine a worker’s employment eligibility, and is subject to investigation and prosecution by the U.S. Department of Justice’s (DOJ) Office of Special Counsel (OSC). Employers are prohibited from engaging in certain practices, including asking foreign-looking applicants for more or different documents than are required from other workers, instructing applicants on which documents to provide for Form I-9 verification, and seeking to reverify documents that are not subject to reverification. The OSC is generally made aware of this practice through complaints filed by the affected employees.
On May 7, 2012, OSC reported that it had reached an agreement with an Ohio corporation located in Groveport, Ohio, resolving allegations that the company discriminated when it fired one of its employees in connection with the “reverification” of his employment eligibility.
In a complaint filed with the DOJ, the employee, a lawful permanent resident, alleged that the employer improperly terminated him after he failed to produce an unexpired lawful permanent resident card, also known as a “green card,” during the reverification of his employment eligibility status for purposes of Form I-9. The employee had originally presented a valid lawful permanent resident card when he was hired, and alleged that his reverification, along with the request for a specific document, was unlawful under the anti-discrimination provision of the Immigration and Nationality Act. Under the rules governing employment eligibility verification, certain documents, including lawful permanent resident cards and U.S. passports, are not subject to reverification.
Under the settlement agreement, the employer agreed to pay $20,169 in back pay plus interest to the charging party and $600 in civil penalties to the United States. The employer further committed to comply with the law and to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process. Finally, the employer will be subject to reporting and compliance monitoring requirements for 18 months.
It is therefore important that employers remain well versed on I-9 employment verification procedures and that they establish internal policies that are consistent, regardless of the employees’ nationality or citizenship status. This way, they will be able to avoid future problems during an audit or investigation.



Carpal Tunnel Syndrome May Be a Disability under the ADA

Since the passage of the ADA Amendments Act in 2008, courts have seen an increasing number of ADA discrimination claims against employers stemming from run-of-the-mill workers’ compensation claims.

The United States District Court’s holding in Gibbs v. ADS Alliance Data Systems, Inc., 2011 WL 3205779 (D. Kansas), drives home the point that many claimants with work-related injuries will now find coverage under the ADA. The plaintiff, Olivia Gibbs, was employed by ADS Alliance Data Systems, Inc. and CVS. Ms. Gibbs was injured while working for CVS. A nerve conduction study following her injury revealed carpal tunnel syndrome, which her doctor attributed to the repetitive nature of Ms. Gibbs’ sales and service representative position at Alliance. Ms. Gibbs then filed for workers’ compensation benefits.

Ms. Gibbs underwent carpal tunnel surgery on her right wrist in December 2008. She returned to work nine days later with restrictions that permitted her to work only with her left hand. Despite the work restrictions and a light duty assignment, Ms. Gibbs’ production numbers were not reduced and she was forced to use her right hand to keep up. As a result, Ms. Gibbs wrote a letter to her human resources manager requesting a different light duty assignment. Evidence in the record revealed that Alliance was frustrated with Ms. Gibbs’ requests for accommodation, and that her supervisor told her that the company was “losing money” on her.

In December 2009, Ms. Gibbs informed Alliance that she needed to have carpal tunnel surgery on her left wrist. The surgery took place and Ms. Gibbs was returned to full duty by her doctor on January 8, 2009. The following day, the Alliance HR manager observed Ms. Gibbs soliciting other employees to purchase Avon products. Ms. Gibbs denied the allegation; however, she was promptly terminated based on a violation of the company’s Solicitation and Distribution Policy.

Ms. Gibbs filed suit against Alliance and alleged that her firing violated the ADA. She claimed that Alliance terminated her based on her disability, i.e., bilateral carpal tunnel syndrome, and that her termination was in retaliation for her engaging in protected activity under the ADA. Alliance moved for summary judgment on both claims.

In rejecting Alliance’s motion for summary judgment, the court began by noting:

[t]he ADA Amendments Act of 2008 (ADAAA) has ”lowered the bar” on the disability inquiry. … While an ADA plaintiff must still show that he or she has a physical or mental impairment that substantially limits a major life activity, 42 U.S.C. § 12102(1)(A), the ADAAA has ”significantly expanded” the terms within that definition in favor of broad coverage. … “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis” and … the “primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.”

The district court therefore held that, “After examining the evidence in the record bearing on this issue (certainly there is some evidence that plaintiff’s condition affected her ability to perform manual tasks), and keeping in mind that this inquiry is not meant to be ‘extensive’ or demanding, the court concludes that genuine issues of material fact exist as to whether plaintiff’s carpal tunnel syndrome constitutes a disability within the meaning of the ADA.”

The court rejected Alliance’s argument that its solicitation policy provided a legitimate, non-discriminatory reason to terminate Ms. Gibbs. “Defendant’s solicitation policy, on its face, does not contemplate termination for a violation of the policy; it states that an employee who violates this policy ‘may’ be subject to counseling.” The court noted that the decision to terminate Ms. Gibbs rather than counsel her casts doubt on reason for her termination.

The court also denied summary judgment on Ms. Gibbs’ retaliation claim. It commented, “the timing of the decision to terminate plaintiff’s employment – just 4 weeks after plaintiff requested an accommodation based on her condition – is sufficient to create genuine issues of material fact as to whether defendant’s proffered reason for terminating plaintiff’s employment was pretextual.”

This is certainly a case worth following. As developments arise, Roetzel & Andress will provide further information and guidance to assist you. Please contact any of our offices to discuss this matter further with one of our employment services attorneys.   



EEOC Determines that Discrimination Laws Protect Transgender Employees

On April 23, the EEOC issued an opinion determining “that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based…on sex,’ and such discrimination therefore violates Title VII.” In this case, a woman claimed she was denied a contractor job with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) after the agency learned she underwent a procedure to change her gender from man to woman. The woman originally applied for the position as a man and was informed she was virtually guaranteed the job. After the ATF learned of her procedure, it informed her that funding for her position had been cut. She later learned the ATF hired someone else for the job.

The EEOC’s decision should not be a surprise as federal courts have recognized that transgender employees are protected from discrimination by Title VII. On December 6, 2011, the 11th Circuit Court of Appeals determined that the termination of an employee based on her non-conformity with gender stereotypes constituted unlawful discrimination. In that case, the employee was born a male but identified as a female. The employee was diagnosed with Gender Identity Disorder.

The decisions of both the EEOC and the 11th Circuit involved government employees; however, the clear indication from the EEOC and the courts is that the same analysis will be applied to employees of private companies. Title VII, like most state statutes, does not specifically designate transgender employees as a protected class, but the EEOC and courts determined that discrimination against transgender employees is a form of sex discrimination. The EEOC and federal court decisions are likely to impact claims brought under state law because most state courts have determined that federal court decisions interpreting Title VII are applicable to claims brought under state law. It should be noted that 16 states and the District of Columbia currently have laws prohibiting discrimination based on gender identity.  

Contact: Jon Secrest

DOJ Sues Jacksonville for Using Written Tests to Determine Fire Department Promotions

On April 23, following a two-year investigation of employee promotions in the Jacksonville, Florida fire department, the United States Department of Justice (DOJ) filed a lawsuit against the city, claiming that its use of written tests are "not job related for the positions in question" and that the tests have "resulted in a disparate impact upon black candidates." According to the DOJ, because African-Americans pass these tests at a lower rate and generally score lower on them, African-Americans have been promoted less often than white employees, and that, in effect, the city is using the tests to disqualify certain people.

Roetzel partner Denise L. Wheeler discussed the suit last week in a radio interview with 970 WFLA on its "AM Tampa Bay" program. Ms. Wheeler said that central to the challenges is test content. "Is the test really appropriate for the skills that you need as a firefighter or supervisor?"

You can listen to Ms. Wheeler's entire interview here: http://www.970wfla.com/player/?mid=22042123.