Posted on June 19, 2012

Seventh Circuit Ruling Clarifies that Illegal Aliens Aren’t Protected

Biz Journals, June 11, 2012

Illegal aliens are not a protected class, according to a recent decision by the Seventh Circuit of the U.S. Court of Appeals. The case was decided under the country’s leading anti-discrimination law, Title VII of the Civil Rights Act of 1964.

Title VII prohibits discrimination against employees “because of” their membership in a protected class. The statute lays out which classes are protected at work. Protected classes include race, color, creed, gender, etc. This case involved national origin.

The Illinois case was titled Cortezano v. Salin Bank & Trust Co. The plaintiff was a bank employee who became a manager. She was married to a man from Mexico. With his wife’s help, he opened several accounts. She was a joint owner of one account. He ended up returning to Mexico “to sort out his citizenship status,” quoting the court, and “around that time,” the plaintiff admitted to her supervisor that her husband had been in the United States illegally and wasn’t authorized to work here.

Concerned about the possibility of bank fraud, the supervisor consulted with bank security and brought the plaintiff in to discuss the matter. She admitted her husband had entered the United States illegally and hadn’t been authorized to work here. She said that he’d gone to Mexico and hoped to return soon, legally.

She alleged the bank mistreated her at the meeting and afterwards. She claimed her supervisor “screamed at her” and called her husband a pejorative. She said that he repeatedly called him an “illegal alien from Mexico.” The matter was further investigated. The investigative report, she said, “harped on the fact that [her husband] was an ‘illegal alien.’”

Another meeting was held. She brought her attorney, and the bank allegedly refused to let the attorney sit in. As an aside, if that were true, the bank was clearly within its rights. Attorneys don’t have a right to insist on being present in their client’s private [nonpublic] employment meetings. When she went to leave that meeting, she claimed the company warned her that walking out would be deemed job abandonment. She left and was terminated.

The Seventh Circuit correctly held that, even if all that were true, she had no claim under Title VII. Again, Title VII prohibits discrimination “because of” national origin. Here there was no evidence that the bank discriminated against her because of national origin.

The Seventh Circuit broke her claim into two parts. First, she was claiming discrimination not because of anything to do with her, but because of something to do with her husband. This kind of claim often is called an “association” claim. For example, a Caucasian male employee might claim he was discriminated against because his wife is African-American. Being African-American is a protected class (race). Some courts have held that a spouse’s association with a protected class member is enough to protect the spouse as well. The Seventh Circuit hasn’t yet addressed association theory and declined to do so in this case.

The Seventh Circuit didn’t need to address association theory because, even if it did apply the theory, nothing in the plaintiff’s evidence raised an issue as to her husband’s national origin. “Even assuming that Title VII applies to discrimination against one’s spouse, (the plaintiff’s) claim falls short because it is based on (her husband’s) alienage, which is not protected by the statute,” the court wrote.