EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 25 given rise to increased concerns about national origin discrimination against Asian Americans, as cautioned by Chair Dhillon in a statement issued early in the COVID-19 pandemic. 168 The legal issues around this form of national origin discrimination have often focused on the perception of membership in a racial or ethnic group, as it is often the case that different nationalities or races are lumped together with this type of discrimination. The EEOC has long argued that discrimination on the basis of perceived national origin is just as actionable as any other kind of national origin discrimination. For example, in EEOC v. MVM, Inc. , 169 the U.S. District Court for the District of Maryland held that “Title VII permits claims of discrimination based on perceived national origin,” and noted that “[t]o conclude otherwise would be to allow discrimination to go unchecked where the perpetrator is too ignorant to understand the difference between individuals from different countries or regions, and to provide causes of action against only those knowledgeable enough to target only those from the specific country against which they harbor discriminatory animus. ” 170 3. Protection Of Immigrants’ Rights To Combat Discrimination In The Courts Over the past few years, the EEOC has litigated several issues related to the potential “chilling” effect that might result if employers are able to use litigation to learn the immigration status of their accusers. For example, in EEOC v. Sol Mexican Grill LLC , 171 the U.S. District Court for the District of Columbia refused an employer’s request to take discovery that would or potentially could reveal the immigration status of charging parties, their families, and any potential claimants or witnesses. 172 The District Court held that “[f]orcing those who allege discrimination to reveal their immigration status in order to have access to the courts may cause those facing discrimination, both citizens and undocumented people, to ‘fear that their immigration status would be changed, or that their status would reveal the immigration problems of their family or friends.’ ” 173 According to the District Court, such a chilling effect could make it less likely that other workers would bring alleged discriminatory practices to light in court . 174 Courts have also consistently held that immigrants – even if they are in the country illegally – are protected by the federal workplace discrimination statutes. For example, last year the U.S. District Court for the District of Maryland held in EEOC v. Phase 2 Investments, Inc. , 175 that discrimination against undocumented workers was an unlawful employment practice under Title VII. In that case, the District Court held that “discrimination against an employee on the basis of his race, national origin, or participation in EEOC investigations is an unlawful employment practice under Title VII even if that employee is an undocumented alien, and the EEOC may therefore pursue its claim here.” 176 The District Court noted that to hold otherwise would allow employers to hire undocumented workers and then unlawfully discriminate against them. 177 168 U.S. Equal Employment Opportunity Commission, “Message From EEOC Chair Janet Dhillon on National Origin and Race Discrimination During the COVID-19 Outbreak,” (Mar. 26, 2020), https://www.eeoc.gov/wysk/message-eeoc-chair-janet-dhillon- national-origin-and-race-discrimination-during-covid-19. 169 See EEOC v. MVM, Inc. , No. 17-CV-2864, 2018 U.S. Dist. LEXIS 81268, at *1-2 (D. Md. May 14, 2018). 170 Id . at *33, 36-37. 171 EEOC v. Sol Mexican Grill LLC , No. 18-CV-2227, 2019 WL 2896933 (D.D.C. June 11, 2019). 172 Id. at *1. 173 Id. (quoting Rivera v. NIBCO, Inc. , 364 F.3d 1057, 1065 (9th Cir. 2004)). 174 Id. at *2. The Fifth Circuit came to a similar conclusion in Cazorla v. Koch Foods of Mississippi, L.L.C. , 838 F.3d 540 (5th Cir. 2016) (holding that defendant’s requests for records relating to the worker-plaintiffs’ U visa applications “may sow confusion over when and how U visa information may be disclosed, deterring immigrant victims of abuse . . . from stepping forward and thereby frustrating Congress’s intent in enacting the U visa program”). 175 EEOC v. Phase 2 Investments Inc. , 310 F. Supp. 3d 550, 555 (D. Md. 2018). 176 Id . at 576-80. 177 Id. at 579.