34 Trial Lawyer • Summer 2022 Unauthorized Continued from p 33 court decline[d] to grant defendant judgment when to do so may tolerate discriminatory behavior by an employer who knowingly hired an undocumented worker and now contends the individual is not permitted to work.” Bustos, *3. While the question of back wages or future wages may remain an open question, most jurisdictions agree plaintiffs can seek lost wages in employment discrimination cases. At minimum, this is an issue of damages, not liability. Most agree compensatory (noneconomic) damages remain available to these workers. Employees should be permitted to seek full recovery. The primary argument that an unauthorized immigrant worker should be permitted to full recovery has to be “[i]f employers know that they will be . . . less financially responsible for a workplace injury as long as the injured party is an [undocumented] immigrant, they will be more inclined to hire [undocumented] immigrants for dangerous positions,” which contradicts the purpose of the IRCA. Pontes v. New England Power Company, No. 0300160A, 2004 WL 2075458, at *3 (Mass.Super. Aug 17, 2004). Courts should not be further incentivizing employers to hire unauthorized workers. Full enforcement Denying employees like Betty access to full remedial measures to which all workers are entitled will not create incentives to unauthorized workers to come to the U.S. If courts refuse to allow employees to pursue discrimination claims and full damages against their employers, our courts would be complicit in condoning discrimination and the criminal act of allowing companies to employ undocumented workers. Migration caused by war, drug violence, corruption and climate change continue to force people to make the life-changing decision to leave their home, possessions and families, in search of work. Fear-mongering politicians in wealthy nations have once again turned to xenophobic, nationalist rhetoric to incite political and real violence against immigrant populations. Despite this rhetoric, immigrants continue to come to the U.S. seeking work, safety and the American promise. Regardless of your opinion on immigration policy and reform, foreign-born workers are here, working, using our roads, living in rental homes and buying things. We protect all workers through equal access to justice, regardless of work authorization. Changes to protect and support It is very rewarding when I am able to help employees like Betty get justice against their former employers. Unfortunately, employees like Betty are still scared to come forward and may still be subjected to threatening behavior from defendants or defense counsel. Defense counsel still find ways to intimidate employees. In one case, a defense attorney described an incident that posed a threat to an undocumented worker would risk detection if the employee went to trial. In another, a lawyer was sued for retaliating against the plaintiff by reporting the plaintiff’s whereabouts to ICE and assisted in having the employee arrested by ICE after a deposition. Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017). While thankfully this type of conduct is not prevalent, it still does occur despite it being unethical to “knowingly intimidate or harass a person [in the course of representing a client.] because of that person’s race, color [or] national origin. . . .” ORPC 8.4(a)(7) Complete and unequivocal enforcement of our anti-discrimination laws will provide protections for all workers and create less incentive for employers to hire unauthorized workers. In October 2021, the Oregon Workers’ Compensation Division announced it would transition toward removal of the section on the claim form that requested an employee’s Social Security number. That change should help but affirming the purpose of the Oregon Equality Act to “encourage the fullest utilization of the available workforce by removing arbitrary standards of race, . . . [or] national origin” would also benefit all Oregon workers. A strong stand from Oregon courts and the Oregon Legislature, affirming that employers cannot entice undocumented workers into employment and then turn them aside when they become problematic without facing the full force of Oregon law would better protect all Oregon workers. Quinn Kuranz represents employees in employment discrimination and wage accountability claims. Kuranz contributes to OTLA Guardians a the Sustaining Member leve. He is the owner of The Office of Q.E. Kuranz, Attorney at Law, LLC, 735 SW First Ave., Ste. 300, Portland, OR 97204. He can be reached at quinn@ kuranzlaw.com or 503-914-3930.
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