Immigrant Workers and Workplace Discrimination: Overturning the Missed Opportunity of Title VII Under Espinoza v. Farah

38 Pages Posted: 19 May 2017 Last revised: 21 Jun 2017

Maria Linda Ontiveros

University of San Francisco - School of Law

Date Written: May 8, 2017

Abstract

This essay argues the Supreme Court decision Espinoza v. Farah Mfg. Co. should be overturned because of its incorrect definition of national origin discrimination under Title VII. The essay argues that Espinoza v. Farah's holding that discrimination based on citizenship status, immigration status or migrant status is not national origin discrimination under Title VII's disparate impact or disparate treatment theories is incorrect from both theoretical and doctrinal standpoints. To bolster its analysis, the essay presents a social and political history of discrimination against Latinos at the time of the decision, as well as the litigation strategy behind Espinoza to illustrate how discrimination based on citizenship status, migrant status and immigration status is discrimination based on national origin. It then shows how two lines of cases — Title VII discrimination cases brought by H1B guest workers on the basis of national origin discrimination and EEOC trafficking cases alleging discrimination based on national origin and/or sex — have begun to erode the analysis underlying Espinoza. It concludes with an argument, based on current Supreme Court standards, that Espinoza should be overturned.

Keywords: immigration, immigrant, worker, H-1B guest worker, employment, discrimination, Title VII, Espinoza v Farah Mfg. Co., national origin, citizenship status, migrant status, immigration status, disparate impact, disparate treatment, trafficking

Suggested Citation

Ontiveros, Maria Linda, Immigrant Workers and Workplace Discrimination: Overturning the Missed Opportunity of Title VII Under Espinoza v. Farah (May 8, 2017). Berkeley Journal of Employment and Labor Law, Forthcoming; Univ. of San Francisco Law Research Paper No. 2017-11. Available at SSRN: https://ssrn.com/abstract=2971261

Maria Linda Ontiveros (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States
415-422-5365 (Phone)

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