Iweala v. Operation Technologies Services, Inc. (D.C. District Court, 2009)

This case would be a run of the mill discrimination case except for the fact that it may have significant implications for employees who do not have work authorization.  The case also signals a brewing rift between the different federal appellate circuits regarding the issue of whether an undocumented worker is eligible for protection of the anti-discrimination statutes.

Iweala, the employee in this case was a black female from Nigeria.  She sued her former employer, Operation Technologies Services, Inc. (“OTS”), alleging discrimination based upon her race, national origin, and pregnancy in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, and 42 U.S.C.S. § 1981.  She also made hostile work environment and retaliation claims.  She alleged that OTS discriminated against her because her supervisors excluded her from important meetings, placed her on the bottom of every leader chart for assignments, reprimanded her when other similarly situated persons were treated more favorably, treated her rudely, subjected her to profanity, removed her from service on the company’s help desk, and terminated her because of her race, national origin, and/or pregnancy status.  Her supervisors also retaliated against her because she complained repeatedly about their discriminatory conduct.

Against these allegations, the OTS offered a novel defense—Iweala was precluded from bringing her discrimination lawsuit because her immigration status made her ineligible for employment.  In a Title VII and § 1981 case, the employee is entitled to remedies only upon establishing that she was qualified for employment.  When the employee is an alien, being qualified is not a function of job skills or capacity, but rather, whether or she is eligible to work in the United States in the first place.  The employer’s argument is based on a simple premise—for Iweala to prevail on certain discrimination claims, she must prove that she was qualified for the job, and that she suffered discrimination despite her qualifications.  However, if she was not eligible to work in the United States because she is an undocumented alien, then she does not “qualify” in the strict sense of the word.  Regardless of her abilities, capacity, or skill for the particular job in question, she cannot as a matter of law work in the United States.  Thus, the anti-discrimination statutes do not apply to her because she cannot as a matter of law establish that she is qualified for her job.  OTS did not argue that Iweala was unqualified in the objective sense, just the legal sense.

OTS’s argument was not specious because other circuits have considered it and found the argument had merit, most notably the 4th Circuit.  Other circuits have come to different conclusions, as the Iweala pointed out.  She argued that the meaning of “employee” as contemplated by the various anti-discrimination statutes have encompassed all types of employees, regardless of immigration or visa status.  Congress never expressed an intention to exclude foreign nationals without work authorization from discrimination protection.

The court in the case made a Solomonic decision—it found that Iweala was entitled to bring her lawsuit even though her employment eligibility is doubtful.  However, she may be precluded from receiving any damages because she may not be able to establish that she “qualified” for her job.  If this decision is held up on appeal (and no doubt this issue will be appealed), it would probably eliminate similar lawsuits by similarly situated persons because it would make the filing of such claims pointless.  Why bother suing when you can establish liability but not be able to collect damages?