STATEMENT REGARDING ORAL ARGUMENT

The EEOC requests oral argument. The district court wrongly required the EEOC to reveal information related to the immigration status of its claimants in this race and national origin discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The court held that the defendants are entitled to the immigration information to assess credibility and to support potential defenses. Under federal law, however, this information is privileged. It is also irrelevant. Even if it were relevant, any relevance would be vastly outweighed by the chilling effect of disclosure on this and future employment discrimination litigation.

If this Court upholds the disclosure order, immigrants who fear disclosure of their own or their friends’ and families’ immigration status will be reluctant to report even egregious violations of their civil rights. Title VII’s protections, which apply regardless of citizenship status, will become unenforceable for some of this nation’s most vulnerable employees. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004) (many of this country’s estimated 5.3 million undocumented workers are willing to work for substandard wages in undesirable jobs, and they fear deportation or criminal proceedings if they seek to assert their civil rights).

Oral argument will allow this Court to explore the issues in greater depth.

TABLE OF CONTENTS

Statement Regarding Oral Argument................................................................. i

Table of Authorities......................................................................................... iv

Statement of Jurisdiction.................................................................................. 1

Statement of the Issues..................................................................................... 2

Statement of the Case....................................................................................... 2

A. Statement of Facts............................................................................. 3

B. District Court Decisions.................................................................... 4

C. Appeal............................................................................................... 5

Summary of Argument..................................................................................... 8

Argument.......................................................................................................... 9

A. The district court’s order to disclose information related to

immigration status is immediately appealable under 28 U.S.C.

§ 1291 pursuant to the collateral order doctrine............................... 9

B. The district court erred by ordering the disclosure of sensitive information related to immigration status despite the chilling

effect of disclosure on this and future litigation............................... 14

1. Standard of Review.................................................................... 14

2. Discussion.................................................................................. 14

Conclusion...................................................................................................... 20

Statement of Related Cases

Certificate of Service

TABLE OF AUTHORITIES

Cases

Arthur Young & Co. v. U.S. Dist. Court, 549 F.2d 686 (9th Cir. 1977)............. 6

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)..................... 13

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)........................ 2, 6

David v. Signal Int’l, L.L.C., No. 12-00557,

2013 WL 6234592 (E.D. La. Dec. 2, 2013).................................................... 14

Demaj v. Sakaj, No. 09-255, 2012 WL 476168 (D. Conn. Feb. 14, 2012)...... 16

EEOC v. Bice of Chicago, 229 F.R.D. 581 (N.D. Ill. 2005)....................... 14-15

EEOC v. DiMare Ruskin, Inc., No. 11-00158,

2012 U.S. Dist. LEXIS 24952 (M.D. Fla. Feb. 15, 2012)............................... 14

EEOC v. Evans Fruit Co., Inc., No. 11-80235 (9th Cir. Nov. 15, 2011)......... 13

EEOC v. First Wireless Grp., Inc., 225 F.R.D. 404 (E.D.N.Y. 2004).............. 15

EEOC v. Williamette Tree Wholesale, Inc., No. 09-690,

2010 U.S. Dist. LEXIS 97380 (D. Ore. July 8, 2010)..................................... 14

Flores v. Albertsons, Inc., No. 01-00515,

2002 WL 1163623 (C.D. Cal. Apr. 9, 2002).................................................. 11

Flores v. Amigon, 233 F. Supp. 2d 462 (E.D.N.Y. 2002)............................... 15

Lopez v. Johnson, 333 F.3d 959 (9th Cir. 2003)............................................. 18

Meyers v. Stephenson, 781 F.2d 1036 (4th Cir. 1986)....................................... 7

Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009)............................... 9, 11, 12

Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010).......................... 12, 14

Rivera v. NIBCO, 364 F.3d 1057 (9th Cir. 2004)........................... 10-12, 18-19

R&R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240 (9th Cir. 2012)............... 14

U.S. v. Dann, 652 F.3d 1160 (9th Cir. 2011).................................................... 3

U.S. v. LKAV, 712 F.3d 436 (9th Cir. 2013)..................................................... 6

Statutes, Regulations, and Rules

28 U.S.C. § 1291................................................................................. 2, 6-9, 13

28 U.S.C. § 1292(b)............................................................................. 1, 5-7, 13

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq

§ 2000e-5................................................................................................ 1

§ 2000e-6................................................................................................ 1

Victims of Trafficking and Violence Protection Act

Pub. L. 106-386 (2000)......................................................................... 15

§102(b)........................................................................................... 15

8 U.S.C. § 1101(a)(15)(T)(i).............................................................. 3, 17

8 U.S.C. § 1101(a)(15)(U)(iii)............................................................... 16

8 U.S.C. § 1101(i)(2)............................................................................... 3

8 U.S.C. § 1255(I)(1)............................................................................... 3

8 U.S.C. § 1367..................................................................................... 16

8 C.F.R. § 214.14(e)(2)......................................................................... 16

Fed. R. App. P. 4(a)(1)(B)(ii)......................................................................... 6-7

Fed. R. App. P. 4(a)(5)(A)(i)............................................................................. 7

Fed. R. App. P. 4(a)(5)(C)................................................................................ 7

Miscellaneous

15A Charles Alan Wright et al., Federal Practice and

Procedure (2d ed. updated Dec. 2013)

§ 3911..................................................................................................... 6

§ 3911.5................................................................................................ 10

Daniel Ford & Lori Jordan Isley, et al, “Protecting the Employment

Rights and Remedies of Washington’s Immigrant Workers,”

48 Gonz. L. Rev. 539 (2012-13)..................................................................... 19

David P. Weber, “(Unfair) Advantage: Damocles’ Sword

and the Corrective Use of Immigration Status in a Civil Society,”

94 Marq. L. Rev. 613 (Winter 2010)............................................................... 13

Extension of Remarks of Hon. John Conyers, Jr.,

151 Cong. Rec. E2605-04, 2005 WL 3453763 (Dec. 17, 2005)................. 15-16

STATEMENT OF JURISDICTION

The district court has jurisdiction over this ongoing Title VII race and national origin discrimination case under 42 U.S.C. §§ 2000e-5 and 2000e-6. The defendants seek access to the claimants’ immigration status and related information. (R.345, Motion) The EEOC opposes this request. (E.R. at 40)[1] On July 31, 2013, the district court ordered the EEOC to disclose the contested information subject to a protective order. (E.R. at 23-24)

On August 23, 2013, the EEOC sought permission from the district court to pursue an interlocutory appeal under 28 U.S.C. § 1292(b). (R.380, Motion) The court denied this request on October 28, 2013. (E.R. at 1) The court imposed a limited stay of its disclosure order, however, “to permit the EEOC an opportunity to seek relief from the Ninth Circuit.” (E.R. at 11)

On November 7, 2013, the EEOC timely filed a notice of appeal pursuant to the collateral order doctrine.[2] (E.R. at 35) Defendants moved to dismiss the appeal for lack of jurisdiction (R.11, Motion), and this Court denied the motion without prejudice. (E.R. at 34)

Although litigation continues in the district court, this Court has jurisdiction over the July 31st discovery order under 28 U.S.C. § 1291. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

STATEMENT OF THE ISSUES

1. Is the district court’s order to disclose information related to immigration status immediately appealable under 28 U.S.C. § 1291 pursuant to the collateral order doctrine?

2. Did the district court err by ordering disclosure of sensitive information related to the claimants’ immigration status despite the chilling effect of disclosure on this and future litigation?

STATEMENT OF THE CASE

The EEOC is suing Global Horizons and two grower defendants for discriminating against a class of Thai workers. (R.141, First Amended Compl.) As part of this ongoing litigation, the defendants seek to obtain information related to the immigration status of the alleged victims. (R.345, Motion) Judge Edward F. Shea of the U.S. District Court for the Eastern District of Washington has ordered the EEOC to produce the contested material. (E.R. at 14)

A. Statement of Facts

The EEOC’s lawsuit alleges that Global Horizons used false promises to induce a class of Thai workers to come to the United States under the Department of Labor’s H-2A guest worker visa program to work as farm laborers for the grower defendants. Once the workers arrived in the United States, the defendants subjected them to a pattern or practice of disparate treatment and a hostile work environment based on their national origin and race. (R.141, First Amended Compl.)

After leaving their employment with defendants, some of the workers alleged that they were victims of human trafficking. (E.R. at 20) They applied for T-visas, which grant lawful temporary residence status to victims of human trafficking so that they may assist prosecutors without fear of deportation. 8 U.S.C. §§ 1101(a)(15)(T)(i), 1101(i)(2); see U.S. v. Dann, 652 F.3d 1160, 1163 n.2 (9th Cir. 2011). The temporary residence status may later be adjusted to lawful permanent residence status if certain conditions are met. 8 U.S.C. § 1255(I)(1).

The defendants here seek access to the claimants’ T-visa applications, supporting materials, and current immigration status. (R.345, Motion) They state that they need these materials both to support their defense that the claimants were encouraged to make human trafficking allegations in order to secure T-visas and to assess the claimants’ credibility. (E.R. at 41-43) The EEOC opposes this request because the information is privileged, because T-visa applications and immigration status are irrelevant to whether defendants engaged in employment discrimination or to any potential defenses that may be asserted, and because disclosure of this information would undermine the EEOC’s law enforcement efforts in the immigrant community.

B. District Court Decisions

The district court ordered the EEOC to disclose the contested information subject to a protective order. The court said that the information is highly likely to be relevant to the EEOC’s claims and the defendants’ defenses. (E.R. at 23-24) Because it is “undisputed that all of the Claimants were in the United States unlawfully after they chose to leave their guest-worker relationship,” the court said, “. . . there is no undue prejudice to be suffered by a Claimant if Defendants discover that the Claimant has a T-visa [a]nd there is no evidence before the Court that a Claimant has a justifiable fear of deportation if their T-visa status is discovered by Defendants in this lawsuit.” (E.R. at 25) The court refused to “unfairly burden Defendants with a costly discovery process” that would require them to depose each Claimant before seeking information related to immigration status. (E.R. at 26)

The EEOC asked the district court to certify interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (R.380, Motion) The district court denied this motion. (E.R. at 1) Although the court acknowledged that “there is a substantial ground for difference of opinion as to this question of law” (E.R. at 9), it held that the question was not “controlling” and that an immediate appeal would not “materially advance the ultimate termination of the litigation” as required for a § 1292(b) appeal. (E.R. at 3) However, the court imposed a limited stay of its disclosure order “to permit the EEOC an opportunity to seek interlocutory relief from the Ninth Circuit.” (E.R. at 11)

In granting the EEOC two weeks “to file a motion with the Ninth Circuit seeking relief from the court’s [discovery] order,” the court explained, “[t]here are serious legal questions raised by the Court’s [disclosure] order, and . . . the Court recognizes that the effects of disclosure cannot be completely undone if the Court’s discovery order is reversed following entry of final judgment. In addition, the public interest in reducing in terrorem effects of court discovery rulings favors a limited stay.” (E.R. at 11)

C. Appeal

By denying the EEOC’s motion to certify an interlocutory appeal under 28 U.S.C. § 1292(b), the district court made it impossible for the EEOC to seek relief from this Court on that basis. See Arthur Young & Co. v. U.S. Dist. Court, 549 F.2d 686, 698 (9th Cir. 1977) (district court’s refusal to certify an interlocutory appeal pursuant to § 1292(b) is unreviewable). The district court had agreed with the EEOC, however, that the EEOC’s challenge raises serious legal questions that cannot be adequately addressed at the end of the lawsuit. (E.R. at 11)

Looking at the disclosure order in light of the district court’s ruling, the EEOC concluded that the order is immediately appealable under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). That doctrine allows appellate review of an interim decision pursuant to 28 U.S.C. § 1291 when it “(1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.” U.S. v. LKAV, 712 F.3d 436, 439 (9th Cir. 2013). The court’s denial of certification under § 1292(b) did not foreclose a collateral order appeal. 15A Charles Alan Wright et al, Federal Practice and Procedure § 3911 at text accompanying n.99 (2d ed. updated Dec. 2013).

With respect to timeliness, the district court entered its disclosure order on July 31, 2013. (E.R. at 14) Construing that order as a final decision, the EEOC’s notice of appeal normally would have been due on September 30, 2013. Fed. R. App. P. 4(a)(1)(B)(ii). However, pursuant to Fed. R. App. P. 4(a)(5)(A)(i), the EEOC had an additional thirty days – until October 30, 2013 – to move for an extension of time. The district court could then have granted the EEOC an extension of fourteen days, counting from the date the order granting the motion for an extension was entered. Fed. R. App. P. 4(a)(5)(C).

On October 28, 2013 – within the period of time when the EEOC could have sought an extension for filing a notice of appeal – the district court denied the EEOC’s request for certification under § 1292(b) and simultaneously granted the EEOC fourteen days to ask this Court for review. (E.R. at 1) Since the court surely knew that the EEOC could not seek § 1292(b) review without certification, the court must have construed the EEOC’s request for certification as, alternatively, a request for permission to appeal out of time. The court then properly exercised its discretion under Fed. R. App. P. 4(a)(5)(C) and extended the EEOC’s time for filing a notice of appeal under § 1291 until November 12, 2013. Because the district court had already granted the extension, there was no need for the EEOC to move explicitly for an extension under Fed. R. App. P. 4(a)(5)(A). Meyers v. Stephenson, 781 F.2d 1036, 1039 (4th Cir. 1986) ("it would be unfair to deny [plaintiff] consideration of the merits of his appeal because he did not make an explicit motion for an extension after the district court had already granted an extension").

The EEOC timely filed its notice of appeal on November 7, 2013. (E.R. at 35)

SUMMARY OF ARGUMENT

The district court’s order to disclose information related to immigration status is immediately appealable under 28 U.S.C. § 1291 pursuant to the collateral order doctrine. The order qualifies as collateral because (1) it is conclusive; (2) it resolves an important question separate from the merits; and (3) it is effectively unreviewable on appeal from the final judgment in the underlying action. Delaying review until after final judgment would deter victims in this and future litigation from asserting their civil rights and would thereby impede the EEOC’s law enforcement efforts in the immigrant community.

On the merits, the district court erred in ordering disclosure because (1) disclosing the information would require the EEOC to violate federal confidentiality provisions; (2) the information is irrelevant to whether the defendants discriminated against the claimants in violation of Title VII or to any potential defenses to a Title VII claim; and (3) even if relevant, any relevance is outweighed by the chilling effect of disclosure. Title VII protects undocumented workers, but this protection is meaningless if the fear of deportation prevents victims from reporting violations.

ARGUMENT

A. The district court’s order to disclose information related to immigration status is immediately appealable under 28 U.S.C. § 1291 pursuant to the collateral order doctrine.

As the Supreme Court has observed, the appellate jurisdiction of section 1291 “encompasses not only judgments that ‘terminate an action,’ but also a ‘small class’ of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’ ‘That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.’” Mohawk Indus. v. Carpenter, 558 U.S. 100, 106 (2009) (internal citations omitted). In determining whether an order qualifies for appeal under the collateral order doctrine, the Court must not engage in an “individualized jurisdictional inquiry.” Rather, the Court must consider “‘the entire category to which a claim belongs.’” Id. at 107 (internal citations omitted).

Forced disclosure of information related to immigration status in a civil rights lawsuit satisfies all three requirements for a collateral order appeal. First, the disclosure order is “conclusive.” Once the claimants’ immigration information is produced, it cannot be unproduced. See 15A Charles Alan Wright et al., Federal Practice and Procedure § 3911.5 at text accompanying n.24 (2d ed. updated Dec. 2013) (“An order to produce is as final as could be asked.”). The district court recognized this dilemma in staying its order pending the EEOC’s appeal. (E.R. at 11)

Second, the order resolves an important issue completely separate from the merits of the litigation. This Court can decide whether the EEOC must produce information related to immigration status without delving into the merits of the employment discrimination claim. The issue is important because, as this Court has already acknowledged, disclosing immigration status could have a chilling effect upon the claimants’ ability to effectuate their rights. See Rivera v. NIBCO, 364 F.3d 1057, 1064 (9th Cir. 2004).

“By revealing their immigration status,” this Court has said, “any plaintiffs found to be undocumented might face criminal prosecution and deportation. Although [defendant] has promised not to disclose the plaintiffs’ immigration status to any outside party . . . requiring the plaintiffs to answer such questions in the discovery process would likely deter them, and future plaintiffs, from bringing meritorious claims.” Id.

The district court wrongly downplayed the chilling effect of disclosure by noting that no claimant has testified that disclosure would chill him or her in particular. (E.R. at 10) The absence of individual declarations is irrelevant. This Court may take judicial notice that “most undocumented workers are [already] reluctant to report abusive or discriminatory employment practices.” Rivera, 364 F.3d at 1065. Permitting disclosure here would exacerbate their already significant fears and could lead some of the claimants to abandon their Title VII claims. See Flores v. Albertsons, Inc., No. 01-00515, 2002 WL 1163623, at *6 (C.D. Cal. Apr. 9, 2002) (“It is entirely likely that any undocumented class member forced to produce documents related to his or her immigration status will withdraw from the suit rather than produce such documents and face termination and/or potential deportation.”).

Finally, the district court’s disclosure order is effectively unreviewable on appeal from final judgment. “The decisive consideration,” the Supreme Court has instructed, “is whether delaying review until the entry of final judgment ‘would imperil a substantial public interest’ of ‘some particular value of high order.’” Mohawk Indus., 558 U.S. at 107. Here, delaying review would have a deleterious effect on enforcement of the civil rights laws. This Court has recognized that

[g]ranting employers the right to inquire into workers’ immigration status in cases like this would allow them to raise implicitly the threat of deportation and criminal prosecution every time a worker, documented or undocumented, reports illegal practices or files a Title VII action. Indeed, were we to direct district courts to grant discovery requests for information related to immigration status in every case involving national origin discrimination under Title VII, countless acts of illegal and reprehensible conduct would go unreported.

Rivera, 364 F.3d at 1065.

The Supreme Court held in Mohawk Industries v. Carpenter that disclosure of material arguably protected by attorney-client privilege is not subject to a collateral order appeal. The Court reasoned that clients are unlikely to decide how freely to speak to their attorneys based on the “remote prospect of an erroneous disclosure order, let alone on the timing of a possible appeal.” 558 U.S. at 110. Moreover, the Court said, erroneous disclosure of material subject to the attorney-client privilege can be corrected through a retrial excluding such information. Id. at 109.

The instant case is distinguishable from Mohawk because it involves the undisputed chilling effect of disclosure of immigration status on the assertion of a civil rights claim. See Perry v. Schwarzenegger, 591 F.3d 1147, 1155-56 (9th Cir. 2010) (distinguishing case from Mohawk because it involved profound chilling effect on Constitutional right to free speech, but granting a writ of mandamus rather than deciding whether the discovery sought there met the Mohawk requirement for collateral order review).

Enforcement of Title VII and other civil rights statutes depends on “unfettered access” to statutory remedial mechanisms. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). The chilling effect that disclosure would have on victims’ willingness to come forward would therefore significantly impede the enforcement of federal antidiscrimination laws. See generally David P. Weber, “(Unfair) Advantage: Damocles’ Sword and the Corrective Use of Immigration Status in a Civil Society,” 94 Marq. L. Rev. 613, 668 (Winter 2010) (“allowing the discovery of immigration status is likely to deter valid claims of illegal activity”).

Notwithstanding these compelling reasons for jurisdiction under § 1291, defendants have urged dismissal of this appeal because several years ago this Court denied interlocutory review of a similar discovery order under § 1292. (See E.R. at 38-39 (citing EEOC v. Evans Fruit Co., Inc., No. 11-80235 (9th Cir. Nov. 15, 2011)) The standards for interlocutory appeal under § 1292, however, are different from the standards for direct appeal under § 1291. Thus, the Evans Fruit decision has no bearing on this case.

B. The district court erred by ordering the disclosure of sensitive information related to immigration status despite the chilling effect of disclosure on this and future litigation.

1. Standard of Review

While discovery rulings are generally reviewed for abuse of discretion, R&R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1245 (9th Cir. 2012), this Court reviews a determination of privilege de novo. Perry v. Schwarzenegger, 591 F.3d 1147, 1159 n.3 (9th Cir. 2010).

2. Discussion

The district court erred by ordering disclosure of information related to immigration status to assess credibility and to support potential defenses. This information is privileged and is irrelevant to whether the defendants discriminated against the claimants based on their race and/or national origin, or to any potential defenses that may be asserted. Even if the information were relevant, moreover, any relevance is vastly outweighed by the chilling effect of disclosure. David v. Signal Int’l, LLC, No. 12-00557, 2013 WL 6234592, at *2 (E.D. La. Dec. 2, 2013); EEOC v. DiMare Ruskin, Inc., No. 11-00158, 2012 U.S. Dist. LEXIS 24952 (M.D. Fla. Feb. 15, 2012); EEOC v. Willamette Tree Wholesale, Inc., No. 09-690, 2010 U.S. Dist. LEXIS 97380 (D. Ore. July 8, 2010); EEOC v. Bice of Chicago, 229 F.R.D. 581, 583 (N.D. Ill. 2005); EEOC v. First Wireless Grp., Inc., 225 F.R.D. 404 (E.D.N.Y. 2004); Flores v. Amigon, 233 F. Supp. 2d 462 (E.D.N.Y. 2002).

Disclosing information related to T-visa applications and status would require the EEOC to violate the confidentiality provisions of the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”) and associated regulations. In creating the T-visa, Congress recognized that victims of human trafficking “are often illegal immigrants in the destination country.” VTVPA, Pub. L. 106-386, § 102(b)(17). Because illegal immigrants “fear retribution and forcible removal to countries in which they will face retribution or other hardship,” Congress explained, “these victims often find it difficult or impossible to report the crimes committed against them or to assist in the investigation and prosecution of such crimes.” Id. § 102(b)(20). To counter this obstacle to enforcement, Congress established the T-visa for victims of human trafficking who agree to assist in prosecuting their traffickers.

The VTVPA mandates strict confidentiality regarding T-visa applications and related information. As Rep. John Conyers explained when the Act was reauthorized in 2005 with strengthened confidentiality provisions that he coauthored, the confidentiality provisions “are designed to ensure that abusers and criminals cannot use the immigration system against their victims.” 151 Cong. Rec. E2605-04, 2005 WL 3453763, at *E2607 (Dec. 17, 2005). Barring certain exceptions that do not apply here, see 8 U.S.C. § 1367(b), federal law prohibits the Department of Justice, the Department of Homeland Security, and the Department of State from “permit[ting] use by or disclosure to anyone . . . of any information which relates to an alien who is the beneficiary of an application for [a T-visa].” 8 U.S.C. § 1367(a)(2).

These prohibitions apply equally to the EEOC. Regulations clarify that “agencies receiving information under this section, whether governmental or non-governmental, are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. § 1367.” 8 C.F.R. § 214.14(e)(2).

Nor can the defendants seek the disputed information directly from the claimants or from the Thai CDC, an organization that helped the claimants with their T-visa applications. The confidentiality provisions of the VTVPA implicitly bar litigants from using civil discovery to obtain protected documents from third-party witnesses. See Demaj v. Sakaj, No. 09-255, 2012 WL 476168, at *5 (D. Conn. Feb. 14, 2012) (denying a motion to compel information related to U-visa[3] application directly from applicant because disclosing the documents would “run contrary to the intent of the protections afforded by 8 U.S.C. § 1367” and interfere with the applicant’s immigration case).

Even if federal law did not prohibit disclosure, whether a claimant applied for a T-visa sheds no light on whether he falsified his Title VII claims. Any suggestion that the claimants may have conspired to use the EEOC process to obtain T-visas is entirely speculative. (See E.R. at 41-43) Because T-visas are granted or denied by the Department of Homeland Security, not the EEOC, 8 U.S.C. § 1101(a)(15)(T)(i), defendants’ conspiracy theory makes no sense.

Likewise, the claimants’ current immigration status is irrelevant to the Title VII claims at issue here. The grant or denial of a T-visa does not make the existence of employment discrimination more or less likely because the standards for proving human trafficking and Title VII violations are not the same. Because human trafficking does, however, require abusive working conditions, the contents of a T-visa application would hardly be likely to refute the EEOC’s allegations.

Defendants argue that they need access to the T-visa applications in order to understand what the claimants accuse the growers, as opposed to the recruiters, of having done. This makes no sense. Defendants are free to depose any and all of the claimants to gain an understanding of what happened to them. The fact that depositions may be time consuming and expensive does not relieve defendants of their obligation to pursue this widely used and effective form of discovery. Moreover, even if the T-visa applications do not discuss the growers’ conduct, this would not mean that the growers are absolved of liability for employment discrimination. They could still be liable based on facts not included in the applications and/or based on a theory of joint employer liability. See Lopez v. Johnson, 333 F.3d 959,963 (9th Cir. 2003) (entity may be a joint employer of an independent contractor’s employees if it retains sufficient control of the terms and conditions of employment).

Finally, as this Court recognized in Rivera, harm from the chilling effect of requiring disclosure would far outweigh any possible relevance to the instant litigation. Undocumented workers, like documented workers, are critical to the statutory goal of “‘eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.’” Rivera, 364 F.3d at 1057, 1069 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)). This Court has expressed a “strong[ ] inclin[ation]” to believe that because undocumented workers are so important to the enforcement of Title VII, they must be entitled to backpay under the statute even though the Supreme Court has barred backpay to undocumented workers under the National Labor Relations Act. Id. at 1069 (distinguishing Title VII from NLRA).

Only if undocumented workers are free to pursue Title VII claims without fear of deportation can they fulfill their statutory role as “private attorneys general.” See Rivera, 364 F.3d at 1067. Disclosure orders such as the one at issue here spread fear and deter victims from coming forward. See generally Daniel Ford & Lori Jordan Isley, et al, “Protecting the Employment Rights and Remedies of Washington’s Immigrant Workers,” 48 Gonz. L. Rev. 539, 542 (2012-13) (“When immigrants fear that they, their family members, or friends may be deported, it is not feasible for them to bring meritorious claims.”). The district court’s order is therefore inconsistent with Title VII’s goal of eradicating employment discrimination.

CONCLUSION

The district court’s order to disclose information related to the claimants’ immigration status will, if upheld, have a devastating and far-reaching effect on the EEOC’s law enforcement efforts. For the reasons stated above, the EEOC respectfully asks this Court to reverse.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel /s/ Gail S. Coleman

Attorney

LORRAINE C. DAVIS EQUAL EMPLOYMENT OPPORTUNITY

Acting Associate General Counsel COMMISSION

Office of General Counsel

CAROLYN L. WHEELER 131 M Street, NE, Room 5SW24L

Assistant General Counsel Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] “E.R.” refers to the EEOC’s Excerpts of Record.

[2] The EEOC’s bases for relying on the collateral order doctrine and for the timeliness of this appeal are explained more fully infra at 6-13.

[3] U-visas, available to undocumented victims of specified crimes, 8 U.S.C. § 1101(a)(15)(U)(iii), are subject to the same confidentiality provisions as T-visas. 8 U.S.C. § 1367.