origin. Id. By relying solely on the fact that the affected individuals were aliens at the time they made application to Switching, the EEOC has failed to establish discrimination on the basis of their national origin, as opposed to their lack of citizenship status. See Fortino, slip op. at 6.
What the EEOC essentially has attempted to do here is to acquaint alienage with national origin. It contends that discrimination disparately impacting on aliens does so on the basis of national origin because, by definition, an alien was not born in this country, and only someone born outside the United States would be required to falsify information relating to his/her citizenship status. The Supreme Court, however, addressed and rejected a similar argument in the Espinoza decision itself. There, the Supreme Court stated that
it is suggested that a refusal to hire an alien always disadvantages that person because of the country of his birth. A person born in the United States, the argument goes, automatically obtains citizenship at birth, while those born elsewhere can acquire citizenship only through a long and sometimes difficult process.
Espinoza, 414 U.S. at 93 n.6, 94 S. Ct. at 339 n.6. In response to this argument, the Supreme Court explained that "it is not the employer who places the burdens of naturalization on those born outside the country, but Congress itself, through laws enacted pursuant to its constitutional power 'to establish an uniform Rule of naturalization.'" Id. at 93 n.6, 94 S. Ct. at 339 n.6 (quoting U.S. Const., art. I, § 8, cl.4). Accordingly, an employer cannot be blamed for requiring its prospective employees at least to have commenced the required process of naturalization or, for that matter, to accurately report the status of that process at the time they submit applications for employment.
As further support for its contention that defendant's policy does not turn on the citizenship status of the affected employees, the EEOC relies on the fact that one of the four terminated employees, Ana Sota, had attained United States citizenship by the time she was discharged. According to plaintiff, therefore, defendant's policy disparately impacts upon those not born in the United States, and its effect is in no way contingent upon whether the affected individual was or was not a United States citizen. The Court finds plaintiff's argument unpersuasive.
Although Sota may have been a citizen at the time Switching discovered her falsifications and terminated her employment, she clearly was not a citizen when she applied for a position with defendant. Because of her lack of citizenship, Sota was compelled to falsify information in order to secure employment. If Sota had been a United States citizen when she made application, then presumably she would not have falsified her application, and she still would have a job with defendant. It is clear that Sota's citizenship status is not wholly dependent on her national origin. While her citizenship status could and did change as the result of her own actions, Sota's national origin remained the same.
Sota did not falsify information on her employment application because she was born outside the United States; she falsified information because she was not a citizen. The fact that she later attained citizenship status does not alter the basis for defendant's alleged discrimination.
Finally, the decision in League of United Latin American Citizens v. Pasadena Independent School District, 662 F. Supp. 443 (S.D. Tex. 1987), does not aid the EEOC's cause. Although the employer's policy at issue in that case was identical to that maintained by Switching here, the plaintiff brought that case pursuant to the Immigration Reform and Control Act of 1986 (the "IRCA"), and not pursuant to Title VII. The relevant section of the IRCA expressly prohibited discrimination on the basis of an individual's citizenship status. See Pasadena, 662 F. Supp. at 448; see also 8 U.S.C. § 1324b(a)(1)(B). As a result, the Pasadena court concluded that "a policy of terminating undocumented aliens for no other reason than that they have given employers a false social security number constitutes an unfair immigration-related employment practice under [the IRCA]. Only because of Plaintiffs' citizenship status have they been unable to secure valid social security numbers." 662 F. Supp. at 448. As the Court has discussed above, Title VII does not prohibit discrimination grounded solely on the citizenship status of the individual affected. Accordingly, the Pasadena decision is inapposite to plaintiff's claim.
In the end, the EEOC's claim of national origin discrimination simply cannot survive in the face of the Supreme Court's decision in Espinoza. Any disparate impact resulting from Switching's policy of immediately terminating any employee who falsified information on an employment application was not based upon the national origin of the aggrieved individuals. Accordingly, the EEOC claim is not actionable under Title VII.
For the reasons set forth above, the EEOC's motion for summary judgment is denied, and summary judgment instead is entered in favor of the defendant Switching Systems.
ILANA DIAMOND ROVNER
UNITED STATES DISTRICT JUDGE
DATED: January 14, 1992