Was the problem his Mexican origin, or his illegal status?

by on July 16, 2012 · 13 Comments POSTED IN: HR Cafe
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“Let me get this straight,” supervisor Neil McCullough said. “You’re asking if you can take three weeks off to go to Mexico to help your husband get U.S. citizenship?”

“That’s right,” said Brittany Shaw, a member of Neil’s department. “Things work pretty slowly down there, even at the U.S. Embassy, and we have a lot of red tape to go through.”

“But your husband has been living here for more than a year, right?” Neil said. “Is he an illegal alien?”

Trying to work it out
“Technically he is,” Brittany said, frowning with annoyance. “But once we get everything worked out, he won’t be.”

“Well, I have no idea how easy or hard it is to get this kind of thing worked out,” Neil said. “But I do know that I don’t think much of somebody who knowingly breaks the law.”

“That’s a narrow-minded attitude,” Brittany said indignantly. “Carlos is a fine person, with a great family and a tremendous work ethic. He doesn’t want to be breaking the law. But it’s not easy for undocumented immigrants these days. Our government puts up a lot of barriers that make it tough for them to get their papers.”

“That’s as may be,” Neil said. “But let’s return to your request for time off.”

Lacking leave
“You want three weeks off at a time of year when we’re especially busy,” he went on. “And you only have seven days left in your PTO bank. So you’re asking for an additional eight days off, beyond anything you have a right to, to help an illegal alien.”

Brittany’s face grew red, but she said nothing.

“My answer is no,” Neil said. “I can’t let you have the time off. If you take it anyway, you’ll be subject to discipline under our attendance policy.”

Brittany got up and left. The following week she departed for Mexico, and when she returned three weeks later, she was fired for unexcused absences.

She sued for national origin, claiming the company discriminated against her because of her husband’s Mexican background. Did she win?

The verdict
No, Brittany didn’t win. The court dismissed her case of national origin discrimination.

The court said the issue wasn’t her husband’s origin, but his illegal status. U.S. civil rights laws safeguard employees against discrimination based on their origin – and arguably against bias based on the origin of their spouses – but don’t protect undocumented immigrants.

So despite the fact that supervisor Neil wasn’t particularly sympathetic about Brittany’s problem, he didn’t break the law when he refused to help her out.

Even though Neil didn’t violate anti-discrimination law, he wasn’t very wise to use a meeting with an employee to express his opposition to illegal immigration and cast doubt on her husband’s character — and by extension, hers.

Better: In such cases, stick to the work-related facts and company policy. If in similar circumstances Neil would have denied an extra eight days leave to any employee, he would have been justified in denying it to Brittany.

Cite: Cortezano v. Salin Bank & Trust Co., No. 11-1631, 7th Cir., 5/21/12.

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13 Comments on This Post

  1. Tammy
    July 16, 2012 - 1:20 pm

    The supervisor Neil should be firing for several offenses…………

  2. Tammy
    July 16, 2012 - 1:20 pm

    The supervisor Neil should be firing for several offenses…………

  3. Lgarrett
    July 16, 2012 - 1:35 pm

    Has the company allowed others to take such leave without discipline or firing?  If they have, then Brittany should not have been fired.  Her husband’s citizenship status should have absolutely no bearing when considering her leave request and or subsequent dismissal.

  4. Lgarrett
    July 16, 2012 - 1:35 pm

    Has the company allowed others to take such leave without discipline or firing?  If they have, then Brittany should not have been fired.  Her husband’s citizenship status should have absolutely no bearing when considering her leave request and or subsequent dismissal.

  5. nevew
    July 16, 2012 - 1:46 pm

    depends on the company’s past practice.  if they allowed others to take time off requests without discipline, then I think the company had a leg to stand on behind their decision.

  6. nevew
    July 16, 2012 - 1:46 pm

    depends on the company’s past practice.  if they allowed others to take time off requests without discipline, then I think the company had a leg to stand on behind their decision.

  7. Beaman
    July 16, 2012 - 2:35 pm

    The supervisor definitely should be reprimand for making inflammatory remarks about her husband’s citizenship status (I don’t think the national origin was a specific issue) but I think that as long as the company has a practice of not allowing for that kind of leave if you don’t have the time to take, the firing was probably upheld. 

  8. Beaman
    July 16, 2012 - 2:35 pm

    The supervisor definitely should be reprimand for making inflammatory remarks about her husband’s citizenship status (I don’t think the national origin was a specific issue) but I think that as long as the company has a practice of not allowing for that kind of leave if you don’t have the time to take, the firing was probably upheld. 

  9. Maryposa
    July 16, 2012 - 3:01 pm

    I should hope she would not win such a frivolous law suit.  He did not disparage her national origin – only the illegal actions of her husband.  And he did mention that it was a busy time for them, so it would create a hardship for her to be gone at that time.  But the current political climate is such that employers are not only not allowed to discourage illegal activity, we are supposed to let our company suffer rather than offend an employee by requesting that they remain at work when they’re needed.   Hmmmm…what’s wrong with this picture?

  10. Maryposa
    July 16, 2012 - 3:01 pm

    I should hope she would not win such a frivolous law suit.  He did not disparage her national origin – only the illegal actions of her husband.  And he did mention that it was a busy time for them, so it would create a hardship for her to be gone at that time.  But the current political climate is such that employers are not only not allowed to discourage illegal activity, we are supposed to let our company suffer rather than offend an employee by requesting that they remain at work when they’re needed.   Hmmmm…what’s wrong with this picture?

  11. HiloHR
    July 16, 2012 - 7:17 pm

    A lot will depend on how strictly the company held to their absence policies.  If not strictly, there’s an extremely good chance the employee will prevail.  Company should prevail if they’ve stuck to the absence policies and enforced it in the same manner as in the instant case.

  12. Ckjtaylor
    July 16, 2012 - 8:01 pm

    The firing was upheld as it sounds like she violated their attendance policy. While his comments weren’t appropriate they weren’t illegal as Carlos is an illegal alien. She wasn’t fired because she was married to him. She was fired due to violating company policy.

  13. DHr.
    July 16, 2012 - 9:40 pm

    It depends on the judge, I say.  I don’t think she has a legal leg on which to stand.  She requested time off during a known busy period.  She was told no and warned that disobedience would be punished.  It’s insubordination plain and simple.  The company’s written policies and practice history may paint a different picture; but prima facia, it’s ee definace that should be punished.

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