Ninth Circuit Court Prohibits Employer from Asking about Former Employees’ Immigration Status During Discovery in a National Origin Discrimination Case

Volume 3, Issue 4
April 15, 2004

Twenty-three Latina and Southeast Asian female immigrants brought a national origin discrimination suit against their former employer, NIBCO, after they were required to take basic job skills examinations given only in English, despite their limited proficiency in the English language, subsequently demoted or transferred, and eventually terminated. A discovery dispute erupted when the employer sought to obtain information during a deposition of one of the plaintiffs concerning her birthplace and immigration status. A magistrate judge presiding over discovery issued a protective order barring all discovery into the immigration status of the plaintiffs, with the exception of any independent investigation undertaken by the employer. On appeal, the U.S. Court of Appeals for the Ninth Circuit upheld the ruling.

One of the reasons why NIBCO sought information about the plaintiffs' immigration status was the potential to limit its exposure to certain types of damages, including back pay, through evidence acquired after the employees' termination. During the pendency of this case, the United States Supreme Court, in the decision for Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), held that the National Labor Relations Board lacks the discretion to award back pay to undocumented workers seeking relief for an employer's unlawful employment practices under the National Labor Relations Act.

The Ninth Circuit Court upheld the discovery restriction placed on the employer finding that, regardless of the applicability of cases like Hoffman Plastic, discovery limitations on questions about plaintiffs' immigration status are justified given "the chilling effect that the disclosure of plaintiffs' immigration status could have upon undocumented workers to effectuate their rights". The court also suggested that the information was of less importance because, at most, it would serve to limit damages not liability.

This decision is quite disconcerting as the Ninth Circuit Court has once again negatively impacted employers' rights and limited their ability to defend against employment discrimination lawsuits.

Rivera v. NIBCO, Inc., --- F.3d ---, No. 02-16532, 2004 WL 771283 (9th Cir. Apr. 13, 2004).

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.