Illegal Aliens Are Not A Protected Class Under Title VII

Title VII  of the Civil Rights Act of 1964 clearly prohibits discrimination on the basis of race, color, religion, sex, or national origin.  Recently the Court of Appeals for the Seventh Circuit held that national origin is not the same as alienage status, and is not protected by Title VII.  As a result, the court ruled that the employer in Cortezano v. Salin Bank & Trust Co. did not violate Title VII by terminating an employee based on her marriage to an illegal alien.

The plaintiff-employee, Kristi Cortezano, was a manager for Salin Bank & Trust Company and was married to an illegal Mexican immigrant. In her role as the bank manager, Cortezano helped her husband to open two business bank accounts for his auto detailing business on which she was listed as a joint owner.   Since Cortezano’s husband lacked a social security card, Cortezano used her husband’s individual tax identification number, the legality of which was questioned, to open the accounts.

When Cortezano eventually disclosed to her supervisor that her husband was in the country illegally, her supervisor shared this information with security.  Concerned that the joint bank account violated banking fraud laws, the bank ultimately terminated Cortezano and reported her activity to the U.S. Immigration and Customs Enforcement.  Cortezano brought suit alleging, among other things, national-origin discrimination under Title VII based on her marriage to a Mexican citizen whose presence in the U.S. was unauthorized.

Cortezano first asserted that she was a victim to discrimination by association.  The court side-stepped this issue, noting that while the Second, Sixth, and Eleventh Circuits have all held that a spouse’s association with a protected class member is enough to protect the spouse as well, the Seventh Circuit has not yet addressed this issue and did not need to address it in this case since the bank’s actions were motivated by the illegal alien status of Cortezano’s husband and not his national origin.

Citing Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973), the court explained that it is well established that  the phrase “nation origin”, as used in Title VII,  refers to the country from which one’s ancestors came and has nothing to do with one’s citizenship or immigration status.   The evidence of this case which included investigative reports, comments to Cortezano by bank officials, and the report filed with U.S. Immigration and Customs Enforcement showed that the bank focused on the illegal status of Cortezano’s spouse and gave minimal attention his Mexican heritage.   Since alien status is not protected by the statute, the employer’s discrimination based on the alien status of Cortezano’s spouse was not illegal.

The Eighth Circuit arrived at the same conclusion in Guimaraes v. SuperValu, Inc. The employee in Guimaraes was a native Brazillian who was working in a supermarket on an employer sponsored H-1B visa. In addition to sponsoring the employee’s H-1B visa, the employer also sponsored the employee’s application for citizenship. A restructuring of the supermarket chain required the employee to report to a new supervisor, and tension soon developed between the employee and the supervisor relative to the employee’s job performance. The supervisor disclosed to another employee that she was trying to have the employee fired in order to stop the employee’s green card process.

Ultimately, the supermarket went through another restructuring in which several positions, including the one held by Guimaraes, were eliminated.   The employee brought a discrimination claim based on national origin under Title VII based solely on the supervisor’s statement that she wanted to stop the employee’s green card process.  The court held that “nothing in [the law] makes it illegal to discriminate on the basis of citizenship or alienage,” and citizenship or immigration status was not the same as national origin.

These two decisions rest squarely on common sense and are a compliment to the well established immigration laws of this country.  We have very clear laws in this country requiring individuals to gain approval by the U.S. Government to work here.  When employers are found to employee illegal aliens, those employers face criminal sanctions.  Employers should, therefore, have the right to terminate employees based on alien status.  A decision by either of these courts that alien status was protected under Title VII, would have undermined our country’s immigration laws and made it difficult for employers to terminate illegal aliens.    This ruling makes clear that if you are in this country illegally or have yet obtained citizenship, at least in the Seventh and Eighth Circuits, you can be terminated based on your alien status, and you are not afforded protection under Title VII.

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