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Court Grants Protective Order

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Rivera, et al. v. NIBCO, et al.: Court grants immigrant workers protective order regarding immigration status

Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

In a case involving allegations of language-based discrimination, a federal magistrate judge has granted a protective order prohibiting defendants from inquiring into plaintiffs' immigration status. Under the order, the 25 Latina and Southeast Asian workers who filed the discrimination claim cannot be asked about their immigration and employment status during depositions. In their complaint, the plaintiffs allege that the defendants violated Title VII of the Civil Rights Act of 1964 in requiring plaintiffs to pass written tests in English, even though defendants knew they were all limited English-proficient.

In her decision of June 19, 2001, Magistrate Sandra Snyder of the U.S. District Court for the Eastern District of California agreed with the plaintiffs that allowing defendants to inquire into the workers' immigration status would have a chilling effect upon the plaintiffs and similarly situated workers asserting their workplace rights. In addition to specifically barring defendants from directly asking plaintiffs whether they are documented, the court also prohibited defendants from asking questions that bear on immigration status, such place of birth. However, the court did permit defendants to ask other indirect questions, such as those relating to place of marriage, educational background, current and past employment, damages, and date of birth. But defendants were not allowed to disclose the information gathered to "anyone other than the parties, their attorneys, and agents (including experts)."

The defendants had sought to obtain information about plaintiffs' past and present employment status by arguing they were entitled to it under the theory of "after-acquired evidence." The theory could have limited the extent of the plaintiffs' reinstatement and the amount of damages to which they would be entitled. In support of their position, the defendants claimed they needed to protect themselves from possible criminal liability. In rejecting the argument, the court noted that the Immigration Reform and Control Act of 1986 (IRCA) subjects employers to criminal liability only if the employer knowingly hired undocumented workers. Moreover, the court noted that the IRCA is silent on the question of whether an employer can use the discovery process in a civil suit to inquire about its employees' immigration status. It held that the defendants can always engage in an independent investigation of the plaintiffs' immigration status but could not ask about it directly in the course of discovery. The court stated that the employer should have inquired into its employees' work authorization when they were first hired and not after a complaint alleging discriminatory conduct was filed. In so holding, the court found its resolution was consistent with the leading Supreme Court case on the after-acquired evidence theory, McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).

The plaintiffs are represented by the Employment Law Center, the ACLU of Northern California, the National Immigration Law Center, and the Law Offices of Richtel & Smith. The defendants have appealed Magistrate Snyder's order.

Rivera, et al. v. Nibco, et al., (U.S.D.C. E.D. Cal. June 19, 2001), No. Cv-F-99-6443 AWI/SMS, 2001 U.S. Dist. LEXIS 8335.