Employers can’t discriminate against someone based on her national origin. But what about discrimination based on whether someone is in the country illegally? Is that also national-origin discrimination?
The answer is a resounding “No!” according to a recent 7th Circuit Court of Appeals case.
Recent case: Kristi met and married a Mexican citizen who was in the United States illegally. Then, she got a job at a bank. When her Mexican husband wanted to start his own business, he got a federal individual tax identification number. With Kristi’s help, he opened two accounts at the bank: a personal account and a business one.
The business failed and he decided to return to Mexico, where he was going to try to get a legitimate visa based on his marriage to a U.S. citizen. Kristi asked for two weeks off so she could visit her husband in Mexico. That’s when bank managers discovered she was married to a Mexican citizen, whom she acknowledged had been an illegal immigrant when she set up the accounts. Kristi was subsequently fired after the bank feared fraud.
She sued, alleging she had really been fired for associating with a Mexican.
The court didn’t see it that way. If anything, it said she was fired for associating with an illegal alien who happened to be Mexican.
He could have been any other nationality, but his immigration status was the factor that led to her discharge. Because Title VII doesn’t prohibit discrimination based on being in the country illegally, she had no case. (Cortezano v. Salin Bank & Trust, No. 11-1631, 7th Cir., 2012)
Final note: Don’t forget that illegal immigrants can sue for unpaid overtime and minimum wage for work performed in the past. They just can’t be reinstated.