Seventh Circuit: Among the Myriad of Protected Classes, Illegal Immigrant Status Is NOT One of Them

Contributed by Carly Zuba

Time for a quick labor and employment pop quiz…

Question: What do race, color, sex, national origin and gender all have in common?

Answer: They are all considered Title VII “protected classes,” meaning that covered employers cannot use these characteristics to discriminate against employees.

Question: Is immigration or citizenship status considered a protected class, thus falling under the umbrella of national origin protection?

Answer: No!  In fact, the Seventh Circuit recently weighed in on this precise question in Cortezano v. Salin Bank & Trust Co., deciding that Title VII does not protect against discrimination based on citizenship or immigration status.

The Facts:  While employed at Salin Bank, Cortezano named her husband as joint owner of her Salin Bank account and assisted him in opening his own personal and business accounts.  Cortezano’s husband was a citizen of Mexico who entered the United Stated without a valid visa.  At some point during her employment, Cortezano informed her supervisor of her husband’s illegal immigration status.  Salin Bank then embarked on an investigation and eventually terminated Cortezano, allegedly for refusing to attend a meeting regarding the investigation.  Cortezano sued Salin Bank, alleging Title VII national origin discrimination, among a number of other claims.

The Ruling:  The Seventh Circuit decided that even if it assumed that Title VII provides bias protections based on the race or national origin of an employee’s spouse – an open question in the Seventh Circuit – Cortezano’s claim fails because she alleged discrimination based on her husband’s immigration status, and not his Mexican ancestry.  The court noted that the phrase “national origin” has been defined by the U.S. Supreme Court as the country from which one or one’s ancestors came; the phrase has nothing to do with whether an individual who came from another country came to this country illegallySince the employer’s internal investigation concentrated on the husband’s undocumented status as opposed to the husband’s race or national origin, the court found that the bank’s actions did not violate Title VII.

While this case provides helpful guidance regarding the extent of Title VII protections, employers should always consult with their labor and employment attorneys before taking adverse actions based on a particular employee’s status.