Spanish born Judge Carlos T. Bea, the newest member of the 9th Circuit writing for the four dissenters to the denial for en banc rehearing sets out his basic argument:
The panel’s decision allows a plaintiff who claims that racially discriminatory firing caused backpay and frontpay lost wages, to refuse to answer deposition questions touching on her place of birth and immigration status.
Thus, the panel’s decision impedes the ascertainment of the truth in advance of trial, thereby profoundly subverting the purposes of liberal Discovery in civil cases. The decision also frustrates the purposes of national Immigration policy: to limit employment benefits to American citizens and foreign persons authorized to work in this country.
It may be tempting to increase the settlement value or the award of a minority worker’s racial discrimination lawsuit by allowing her to include claimed lost wages and bar questioning of her immigration status. After all, the employer hired her and benefitted from her labor. While she was working, the employer did not dig too deep into whether her papers were in order. Now that she asserts her civil rights against the employer’s claimed discriminatory firing, the employer gets righteous, and for all the wrong reasons.
If estoppel by the employer’s acts could bar enforcement of our country’s Immigration laws, the panel’s opinion might not be so objectionable. Of course, we know such private conduct cannot frustrate explicitly stated congressional public policy. See Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137, 151-52 (2002) (holding that plaintiffs, who were unauthorized aliens, were not entitled to backpay as a remedy for violation of the NLRA because such remedy would “unduly trench upon” federal immigration policy expressed in the IRCA).
We risk corrupting an admirable civil rights policy to prevent discrimination when we rely on evasions to enforce it. ...