In 2011, the United States Supreme Court held in Thompson v. North American Stainless that an employer may violate Title VII by retaliating against an employee who is related to a worker engaged in conduct protected by Title VII—even if the employee himself neither raised a claim of discrimination nor engaged in any protected conduct. Click here to read an alert we wrote on this topic. Since then, some jurisdictions have interpreted Thompson to protect employees and applicants from discrimination, as well as retaliation, based on their close relationship with a member of a protected class.

These cases turn on whether the close associate of the applicant or employee falls within a protected class. Finding that “alienage” is not a protected category, the United States Court of Appeals for the Seventh Circuit recently held that the spouse of an undocumented alien is not protected from termination based on her husband’s unauthorized status.

In Cortezano v. Salin Bank and Trust Company, the bank teller plaintiff was, by all accounts, a good employee.  She was also married to a man who had entered the United States from Mexico illegally.  After the husband obtained an individual taxpayer identification number (ITIN), the couple opened multiple joint bank accounts within the bank at which the plaintiff was employed.  A few months later, the husband returned to Mexico to try to sort out his immigrant status. Shortly thereafter, while asking permission to take a two-week vacation to help her husband through this process, the employee disclosed her husband’s unauthorized status to her employer.

To say that the bank was upset would be an understatement.  Concerned that the employee’s husband had unlawfully obtained an ITIN, and that the couple’s joint accounts had been opened fraudulently or otherwise violated banking regulations, the bank terminated the teller’s employment and reported the husband to federal immigration authorities. 

The wife sued, claiming that she was discriminated against because of her marriage to a Mexican citizen whose residence in the United States was unauthorized.  The Court disagreed, finding that even if Title VII operates to prohibit discrimination based on an applicant or employee’s close association with a member of the race or national origin of an employee or applicant’s spouse or partner (an open question in the Seventh Circuit), it does not protect against discrimination based on a spouse or partner’s alienage.  Holding that the bank teller’s firing was not based on her husband’s Mexican national origin, but on his status as an undocumented alien, the Court found no unlawful discrimination. 

The take away from this case may be found in the Court’s description of the bank’s report on its internal investigation, which focused on a business-related issue (the husband’s undocumented status) and not on the his race, national origin or some other characteristic not related to the business issue .  Specifically, as noted by the Court, the report repeatedly noted that the husband was “smuggled into the US illegally,” had “resid[ed] in the US illegally,” was an “illegal alien” and an “illegal immigrant.” The report barely notes the husband’s Mexican heritage, making only passing references to the couple’s trips to Mexico to resolve the husband’s immigration status.  In other words, the investigation and the report focused on the business-related issue – the husband’s undocumented status – rather than on non business-related issues – his race or national origin.