- Blog post
Was the problem his Mexican origin, or his illegal status?
“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.”
“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?
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.