Monday, May 29, 2017
Decades ago, the Supreme Court read Title VII's ban on employment discrimination because of “national origin” not to cover employment discrimination because of citizenship or immigration status. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). There, the Court relied on, among other things, the sparse legislative history, and that Congress had already required some federal employees to be citizens: “[W]e cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of federal employment and, at the same time, prevent private employers from doing likewise.” Id. at 91.
In a newly-posted working paper (“Immigrant Workers and Workplace Discrimination: Overturning the Missed Opportunity of Title VII under Espinoza v. Farah”), Maria Ontiveros argues that Espinoza---by reading "national origin" in Title VII to only cover country-of-origin discrimination----got it wrong and should now be overruled. Here's the abstract:
This essay argues the Supreme Court decision Espinoza v. Farah Mfg. Co. should be overturned because of its incorrect definition of national origin discrimination under Title VII. The essay argues that Espinoza v. Farah's holding that discrimination based on citizenship status, immigration status or migrant status is not national origin discrimination under Title VII's disparate impact or disparate treatment theories is incorrect from both theoretical and doctrinal standpoints. To bolster its analysis, the essay presents a social and political history of discrimination against Latinos at the time of the decision, as well as the litigation strategy behind Espinoza to illustrate how discrimination based on citizenship status, migrant status and immigration status is discrimination based on national origin. It then shows how two lines of cases — Title VII discrimination cases brought by H1B guest workers on the basis of national origin discrimination and EEOC trafficking cases alleging discrimination based on national origin and/or sex — have begun to erode the analysis underlying Espinoza. It concludes with an argument, based on current Supreme Court standards, that Espinoza should be overturned.
The paper is forthcoming in the Berkeley Journal of Employment and Labor Law.