tion by concealing their identities than by relying on the deterrent effect of post hoc remedies.”). Doe pleading, therefore, may be an option in a larger action where the identities of the plaintiffs cannot readily be surmised by the employer. Similarly, by pleading the existence of a class, it may be possible to deter, or at least defer, scrutiny into the immigration status of putative (i.e., unnamed) class members. After you have laid the foundation
for effectively representing your immi- grant client through establishing solid communication and drafting a well- thought out complaint, you will need to look ahead and try to anticipate – and prevent, wherever possible – the ways in which the defendant may try to use her status as an immigrant during discovery or at trial to devalue or defeat her merito- rious claims. We will now explore strate- gies to avoid and resist these efforts.
Protecting clients from retaliation All workers run the risk of retaliation
when they file a complaint. However, if your client is undocumented, or has family members who are undocumented, she faces the additional risk that the defendant will threaten to report her to immigration authorities, or take other less extreme but nonetheless harmful measures designed to chill her exercise of protected rights.13 Thus, in addition to assessing the likeli- hood that your client’s immigration status could arguably be implicated by her legal claim at the outset of the case, you should also explore with your client whether the defendant is likely to engage in retaliatory behavior and try to use the threat of status disclosure as a way to pressure her into abandoning her claims. Courts have found that reporting an
employee to immigration authorities in retaliation for filing suit gives rise to a cause of action for unlawful retaliation under state and federal statutes.14
But of
course, it is better to take proactive steps to prevent such retaliation from happen- ing in the first place if they are at all foreseeable. Depending on the nature and degree of the perceived risk that a defendant will act, such steps could range from explaining to opposing
counsel that any threats to report your client or anyone in the client’s family to immigration authorities will be consid- ered unlawful retaliation, to seeking a temporary restraining order or prelimi- nary injunction if the defendant exhibits a clear intention to retaliate or has previously engaged in some retaliatory activity.15
Keeping immigration status out Pursuing meritorious litigation often
includes defending against aggressive efforts by defendants to use plaintiffs’ immigration status as a tool to discourage them from continuing to pursue their claims. We have many tools at our dispos- al to resist defendants’ efforts to force dis- closure of our clients’ immigration status, and should not hesitate to use them early in the case, even when the client is legally authorized to work here. As others have noted elsewhere, it is better not to defer questions of discoverability to the time of trial, because the protections that exist in discovery once your client’s immigration status or privacy rights are implicated are far broader than the standards for admis- sibility.16
California law clearly bars such dis-
covery in employment and other civil matters. As set forth in subsection (b) of Labor Code § 1171.5, Civil Code section 3339, and Government Code section 7285:
For purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liabili- ty, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a
person’s immigration status except where the person seeking to make this inquiry has shown by clear and convinc- ing evidence that this inquiry is neces- sary in order to comply with federal immigration law. (emphasis added) Thus, in employment cases, so long as reinstatement is not sought,17 these sec-
tions make it clear that no evidence can be taken in discovery regarding immigra- tion status – period. This section therefore can be cited in objecting to deposition
ipsone.com APRIL 2011 The Advocate Magazine — 101
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112