Could barring evidence in court of undocumented workers’ immigration status actually prevent employers from hiring illegal immigrants? It could, according to one Illinois district court judge.

U.S. Magistrate Judge Sheila Finnegan has barred evidence regarding a plaintiff’s immigration status in a case involving a claim for unpaid wages under the Fair Labor Standards Act, ruling that the evidence was “not relevant to a claim for unpaid wages under the FLSA.” Kim v. Hakuya Sushi Inc. et al., No. 1:15-cv-03747 (N.D. Ill. July 5, 2017). Her opinion mirrored the language of other cases finding that “immigration status has generally been protected from discovery” in FLSA claims. See, e.g., Rosas v. Alice’s Tea Cup, LLC, 127 F. Supp. 3d 4, 9 (S.D.N.Y. July 6, 2015). According to Judge Finnegan, denying illegal workers the protections of the FLSA would “create an incentive for employers to hire illegal workers so they could pay them less than minimum wage, in contravention of laws designed to reduce illegal immigration.”

This trend of barring evidence of an individual’s immigration status extends beyond the context of the FLSA. For example, the Fifth Circuit Court of Appeals upheld a lower court decision that evidence of a plaintiff’s immigration status should be barred in the context of a Title VII claim. Cazorla v. Koch Foods of Miss., L.L.C., 838 F.3d 540, 556 (5th Cir. Sept. 27, 2016) (confirming E.E.O.C. v. Rest. Co., 448 F. Supp. 2d 1085, 1087 (D. Minn. 2006)). Similarly, courts have held that plaintiffs in employment discrimination suits are not compelled to disclose the accuracy of their Social Security numbers because, “‘even though such immigration status might be relevant [to credibility], it is a potential weapon for harassing and intimidating individuals and because there [are] other tools for impeachment that would not implicate the plaintiffs’ immigration status.’” Jimenez v. Brooks, 2016 Conn. Super. LEXIS 581, *18 (Conn. Super. Ct. Mar. 15, 2016) (quoting E.E.O.C. v. First Wireless Group, Inc., 2007 U.S. Dist. LEXIS 11893 (E.D.N.Y. Feb. 20, 2007)).

The Supreme Court of Washington has gone one step further. It has publicly endorsed a proposed new rule that would exclude evidence of a party’s immigration status from all civil and criminal cases (with a few exceptions). The Court said the new rule “would promote equitable access to justice by removing the potential for racial and ethnic stereotyping that inevitably results from the unnecessary injection of immigration status evidence into the fact-finding process.” New Rule of Evidence 413 — Immigration Status, 2017 Wash. LEXIS 631, *7 (Wash. June 1, 2017).

Whether barring evidence of immigration status from FLSA claims, Title VII claims, or civil litigation altogether, there is an undeniable trend towards protecting immigrants in our justice system.