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The U.S. Supreme Court has declined to review the precedent-setting
opinion of the U.S. Court of Appeals for the Ninth Circuit in Rivera
v. NIBCO, Inc. The 2004 decision, which sharply limited the ability
of employers to undertake invasive and intimidating inquiries into
employees’ immigration status in the course of workplace rights
litigation, thus now stands as controlling law in the nine western
United States. Moreover, because Rivera is the only federal
appeals court decision to address this discovery issue in light of
recent Supreme Court case law, it is expected to have a significant
impact upon similar cases brought by immigrant workers nationwide.
Rivera, which was originally filed in U.S.
district court in Fresno, California, in Oct. 1999, is a Title VII
employment discrimination case on behalf of 23 Latina and Southeast
Asian women who were fired from their manufacturing jobs after not
passing a job-skills examination given in English, even though they had
performed their work well for years and did not need English proficiency
to do it. The plaintiffs alleged that by testing and then firing them
on this basis, NIBCO had unlawfully discriminated against them
because of their national origin and language. Because NIBCO’s
attorneys attempted to question the plaintiffs regarding their
immigration status during the fact-finding stages of the case, however,
the plaintiffs were forced to seek—and received—a protective order from
the district court that barred and otherwise limited NIBCO from pursuing
that and related lines of questioning.
NIBCO appealed, and the Ninth Circuit affirmed the
protective order (see “9th Circuit
Upholds Protective Order Limiting Employers’ Inquiries into Plaintiffs’
Immigration Status,”
Immigrants’ Rights Update, June 18, 2004, p. 5). NIBCO’s
subsequent request that the entire Ninth Circuit, sitting en banc,
reconsider and reverse the original panel decision was rejected. NIBCO
then filed its ultimately unsuccessful petition for review with the
Supreme Court.
The Supreme Court’s action means that employers
cannot use inquiries into immigration status as a means of diminishing
the rights of any worker. The decision benefits not only the workers
involved in this specific case, but all workers with an interest in
seeing federal worker-protection laws vigorously enforced.
Counsel for the plaintiffs in this case include
the Legal Aid Society (of San Francisco) Employment Law Center, the Law
Offices of Richtel & Smith, the Asian Law Caucus, Minami, Lew & Tamaki
LLP, and NILC. The case is scheduled for trial in February 2006.
Rivera
v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004),
cert. denied, 2005 U.S. LEXIS 2264 (Mar. 7, 2005).
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