Thomas A. Doyle Published in ABA Journal
An article written by Wexler Wallace attorney Tom Doyle appears in a recent issue of the ABA Journal of Labor & Employment Law, which is published by the American Bar Associations’ Section of Labor & Employment Law. The article examines how Courts are deciding disputes over whether a plaintiff in an employment lawsuit must answer questions about his immigration status.
The article discusses the development of the law in the wake of the landmark Ninth Circuit decision inRivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004). Rivera was a Title VII case, and the Court prohibited the employer from asking whether the plaintiff was an undocumented worker. The article discusses how Courts are addressing this issue in recent disputes. Even today, Courts worry that employers might abuse the discovery process to intimidate workers seeking to enforce their workplace rights.
The article calls for Courts to adopt a bright-line rule that immigration status is not discoverable in employment litigation, absent unusual circumstances. And in those rare situations when the topic is permitted for discovery, the Court should carefully manage the timing of and use of any discovery into a worker’s immigration status. By adopting this approach,
“Courts might curtail the number of discovery motions on this issue. Employers could still raise an immigration status question when there was a basis for it in a particular case, but workers would know that a lawsuit would likely not involve intimidating questions about their immigration status (especially when those questions have little chance of leading to admissible evidence). And by deferring the issue until the very end of the case — that is, after everything else had been decided — courts would discourage unscrupulous employers from using the issue to intimidate or otherwise exploit immigrant workers.”
A full copy of the article appears in the publication’s Spring 2013 edition.