Agreeing with the EEOC’s argument that allowing such discovery into the immigration status of the workers would have an in terrorem effect, the court in EEOC v. First Wireless Group, Inc. concurred with the decision of the Ninth Circuit in Rivera, as well as the decision in Flores v. Amigon, 02 CV 838 (SJ) (E.D.N.Y. Sept. 19, 2002), which held that even if immigration status were relevant, the prejudice to the workers outweighs the probative value of such information.  (For more on Rivera, see “9th Circuit Upholds Protective Order Limiting Employers’ Inquiries into Plaintiffs’ Immigration Status,” p. 5 of this issue; for more on Flores, see “Courts Continue Rejecting Defendants’ Post-Hoffman Inquiries into Plaintiffs’ Immigration Status,” Immigrants’ Rights Update, Oct. 21, 2002, p. 10.)

     The defendant also sought information regarding the workers’ income tax returns, arguing that a false statement on the tax returns or failure to file taxes is important to a determination of the workers’ credibility.  The court explained that, “because of the recognized confidential nature of tax returns,” the employer would have to meet the two-prong test of showing that (1) the tax returns are relevant to the subject matter of the case, and (2) the defendant has a compelling need to review them because the information they contain is not available anywhere else.  The court found that the defendant’s discovery request did not pass this test and that if the court were to allow the disclosure of tax returns on the “mere belief that they may contain impeachment material, the protections afforded such returns would be nonexistent.”  While the court did not allow the defendant access to the income tax returns, it did allow the defendant to ask the workers directly whether they had ever filed tax returns and whether they had made any false statements.

     This is an important decision showing the steps the EEOC is taking to protect all individuals, regardless of immigration status, under the statutes it enforces.  Advocates will need to remain vigilant about the outcome of such cases and encourage other federal and state administrative agencies to properly enforce their statues on behalf of all workers.  However, it is important to note that this is a partial victory, since the court allowed inquiries into the filing of tax returns and false statements for credibility purposes, which will often present problems for immigrant claimants.

     A copy of the decision can be obtained by contacting NILC’s Marielena Hincapié at hincapie@nilc.org.

Equal Employment Opportunity Commission v. First Wireless Group, Inc.,
 CV 03-4990 (JS) (ARL) (E.D.N.Y. June 15, 2004).