• Does Title VII Prohibit Immigration-Based Discrimination? Seventh Circuit Court of Appeals Says “No”
  • September 7, 2012 | Authors: Gary D. Knopf; Rebecca Williams Shanlever
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • Title VII clearly prohibits discrimination on the basis of race and national origin, but do those categories include immigration status?  In other words, can an employee bring a Title VII claim for discrimination based on his or her status as an unauthorized resident of the United States?  In a recent decision, Cortezano v. Salin Bank & Trust Company, the United States Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, answered “no.”

    The Facts and the Court’s Decision

    What happened in this case was pretty straightforward.  Kristi Cortezano worked for Salin Bank as a sales manager and was married to Javier Cortezano, a Mexican citizen and an unauthorized resident of the United States.  Kristi added Javier as a joint owner to her personal account at the Bank.  With some help from Kristi, Javier then opened and solely held two additional accounts at the Bank.  When Kristi requested vacation time to travel to Mexico and help Javier with his citizenship status, she told her supervisor about Javier’s unauthorized status.  Convinced that Javier must have committed fraudulent activity in opening the accounts, the Bank initiated an investigation into potential bank fraud and Kristi’s involvement.  The Bank’s report focused largely on Javier’s undocumented status, repeatedly referring to him as an “illegal alien,” and began considering whether to terminate Kristi based on her involvement in possible fraud.  When Kristi refused to attend a meeting with the Bank without her attorney present, the Bank fired her, supposedly for abandoning her job.  Kristi sued the Bank under Title VII, alleging that the Bank discriminated against her because of her marriage to a Mexican citizen whose residence in the U.S. was unauthorized.

    The trial court granted the Bank’s motion for summary judgment and dismissed the complaint.  The Court of Appeals agreed, noting that the undisputed evidence shows the Bank decided to fire Kristi not because Javier was Mexican (i.e., his race/national origin), but because he was an undocumented alien.  The Court paid particular attention to the Bank’s investigation report, which made little reference to Javier’s Mexican heritage, and instead “repeatedly noted” Javier’s illegal status in the U.S.

    As the Court of Appeals noted, the U.S. Supreme Court decided some 40 years ago in Espinoza v. Farah Mfg. that “national origin” under Title VII means ancestry and does not encompass citizenship or immigration status.  The Court of Appeals noted that the Supreme Court defined the phrase “national origin” as the country from which one or one’s ancestors came; the phrase has nothing to do with whether an individual who came from another country came to this country illegally.  Because the evidence was clear that the Bank terminated Kristi because her husband was an undocumented alien - and not because he was Mexican - the Court concluded that she had no claim for relief under Title VII.  Because Title VII does not include immigration status, the Court of Appeals did not have to decide whether discrimination based on the race or national origin of one’s spouse (or partner) falls within the protections of Title VII.

    What Cortezano Means for Employers

    Cortezano’s decision that unauthorized alien status is not protected under Title VII may have employers breathing a sigh of relief, but employers still should proceed with caution before making decisions on this basis.  There is a very fine line between illegal immigration status and national origin, and the employer in Cortezano successfully walked that line, primarily because of its thorough, consistent documentation.  The case highlights how the background documents reflecting the reasons for an employer’s decision became significant in litigation.  The Court emphasized the Bank’s investigation reports, which focused on Javier’s undocumented status and not on his race, national origin, or any other protected characteristic.  Those investigation reports may have made the difference between dismissal of Kristi’s complaint and a trial.  Employers should make sure that any employment decision based on immigration status and any notes, emails, reports, or other documents related to the decision are based solely on the worker’s immigration status and not his or her country of origin or ancestry.

    Another point to remember is that although Title VII’s prohibition against national origin discrimination does not include immigration status, other federal laws may be implicated.  As the Court of Appeals noted, Congress has attempted to limit the impact of the Supreme Court’s Espinoza decision by passing the Immigration Reform and Control Act (IRCA).  IRCA prohibits adverse employment actions based on citizenship status, and it applies to employers with four or more employees, although it expressly excludes unauthorized aliens from coverage.  Under IRCA, an employer may not discriminate against an applicant or employee simply because he or she is not a U.S. citizen - in other words, employers may not establish a “U.S. citizen only” policy (unless required by federal, state, or local law).  State law may also provide protections greater than those available under federal law.  Of course, employers may - indeed, must - require documentation of an individual’s legal right to work in the U.S.

    Finally, it is important to recognize that although the Court of Appeals did not decide whether Title VII protected Kristi from discrimination based on her husband’s race or national origin, other appellate courts - including courts that cover New York and Georgia - and the EEOC have concluded that Title VII does prohibit discrimination based on a spouse’s national origin (or other protected characteristic).  The Court of Appeals in Cortezano noted that this was the law in other circuits, but was able to sidestep the issue because of its finding that undocumented alien status is not protected under Title VII.  This question remains a live issue in some circuits.