Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004)

Twenty-three Latina and Southeast Asian female immigrants had been employed at NIBCO’s factory in Fresno and were terminated following their poor performance on a basic job skills examination that was given in English. The employees alleged discrimination under Title VII and the California Fair Employment and Housing Act. During a deposition, Martha Rivera’s counsel instructed her not to answer NIBCO’s questions regarding her immigration status. The Magistrate Judge issued a protective order barring any discovery from the employees about their immigration status on the ground that such discovery would unnecessarily chill legitimate claims of undocumented workers under Title VII. Relying upon Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), NIBCO argued that it was entitled to inquire into the immigration status of the former employees during the discovery process. The Ninth Circuit (Reinhardt, J.) disagreed with NIBCO and held that the balancing of the interests favored the prohibition of such inquiry given the Court’s view that Hoffman Plastic does not foreclose an award of backpay to an undocumented immigrant in a Title VII lawsuit – as it does in cases involving alleged violations of the National Labor Relations Act. The Court also held that such inquiries were not justified under either the “After-Acquired Evidence Doctrine” or federal immigration law.