Here at the Fair Housing Defense blog we have reviewed our protected classes many times: the federal Fair Housing Act (FHA) lists seven protected classes: race, color, national origin, religion, sex, familial status, and disability. Plaintiffs, of course, will typically attempt to extend or expand just what is covered under the law while Defendants will similarly work to narrow the application of the statute. So, how about “alienage” – the status of being unlawfully in the United States? Should that be covered under our federal anti-discrimination laws?
One federal appellate court just ruled no. In an employment context (which is useful as many of the standards are similar), the U.S. Court of Appeals for the Seventh Circuit held that “alienage” is not the same thing as “national origin” or "race" when it comes to employment discrimination. The statute (known as Title VII) forbids discrimination on the basis of race, color, religion, sex, or national origin, but does not mention “alienage.” In this new decision, the court held that being fired for being married to an illegal alien does not violate Title VII since “alien” is not the same thing as race or national origin.
The plaintiff, who worked at a bank, was married to a Mexican national who entered the United States illegally. The couple had a joint bank account at the employer-bank, and the employer discovered that the husband was an illegal alien. The plaintiff was eventually fired for leaving a meeting to review this matter and sued the bank under Title VII claiming that she was terminated because she was married to a Mexican citizen whose residence in the United States was not authorized.
In helping to reach this decision, the court relied on an old Supreme Court case which concluded that “national origin” is restricted to “the country from which you or your forebears came.” Accordingly, the appeals court wrote that “national origin discrimination as defined in Title VII encompasses discrimination based on one’s ancestry, but not discrimination based on citizenship or immigration status.” As such, because alienage is not a protected class, the panel concluded the plaintiff did not have an actionable claim.
Had this been a housing discrimination case under the FHA and a plaintiff sued because of his or her status as an illegal alien, I suspect the result would have been the same.