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Yesterday’s Filing

Yesterday we filed this reply to the brief in opposition in No. 04-936, NIBCO, Inc. v. Rivera. This case concerns a Title VII defendant’s right to discovery regarding plaintiffs’ immigration status. In 2002, in Hoffman Plastic Compounds v. NLRB , the Supreme Court held that employees with no legal right to work in this country cannot receive back pay as a remedy for violations of the National Labor Relations Act, because such an award would undermine federal immigration policy. This case presents the opportunity for the Court to clarify whether that ruling also applies to Title VII cases, and to resolve a conflict in the courts of appeals concerning the scope of undocumented workers’ Title VII rights. (The Fourth Circuit had, even before Hoffman, held that undocumented workers may not sue under Title VII.)

The case also presents a question concerning the proper scope of protective orders limiting discovery: whether a district court may bar discovery on an issue completely on grounds of undue hardship or embarrassment to the party subject to discovery, when a narrower order–e.g., one that merely barred disclosure of information obtained–would alleviate that hardship.