Hunton Employment & Labor Perspectives

The Seventh Circuit Court of Appeals recently ruled that discrimination on the basis of immigration status is not covered under Title VII.  In Cortezano v. Salin Bank & Trust Co., No. 11-1631, the facts involved spouses Kristi and Javier Cortezano.  Javier was an unauthorized immigrant from Mexico, while his wife Kristi was employed as a sales manager at Salin Bank. When Kristi’s supervisor discovered Javier’s unauthorized immigrant status, the bank initiated a process that ultimately led to Kristi’s termination.  Kristi filed suit against Salin Bank alleging, among other things, employment discrimination under Title VII.  The U.S. District Court for the Southern District of Indiana granted Salin Bank’s motion for summary judgment. 

In affirming the district court’s ruling, the Seventh Circuit held that immigration status is not protected under Title VII.  In support of its ruling, the Seventh Circuit cited the United States Supreme Court’s 1973 decision in Espinoza v. Farah Mfg. Co., where the Supreme Court adopted a narrow definition of “national origin” under Title VII that excludes “citizenship or immigration status.”  The Seventh Circuit did not decide whether Title VII covers discrimination on the basis of race or national origin of a person’s spouse or partner because it found that the undisputed facts indicated that the bank’s decision to terminate Kristi was based upon Javier’s unauthorized presence in the United States and not due to Javier’s Mexican ancestry.  The Seventh Circuit did note that several other federal circuit courts of appeals have held that Title VII’s protections do apply to discrimination based on a spouse’s or partner’s race or national origin.  

Although the Seventh Circuit’s ruling provides support under Title VII for employer action against employees on the basis of their or their spouse’s immigration status, employers should consider consulting counsel before terminating an employee on the basis of perceived immigration status, as factual differences could potentially lead to a different result under federal or state law.