In the latest act of a nearly two-year drama that has played out in both the U.S. District Court for the Eastern District of Washington and the U.S. Court of Appeals for the Ninth Circuit, Judge Lonny R. Suko gave the EEOC a stark choice in a May 7, 2012 order - give up the immigration status of the women it represents in its sexual harassment lawsuit, or abandon any possible recovery on their claims.  

In EEOC v. Evans Fruit Co., Inc., Case No. CV-10-3033 LRS (E.D. Wash.), the EEOC is seeking back pay and emotional distress damages on behalf of 25 women who were allegedly sexually harassed by the company's managers. During discovery, Evans Fruit asked the EEOC to identify each person it claimed was an alleged victim of sexual harassment and provide information related to their claims for pecuniary and non-pecuniary damages, including their immigration status. The EEOC objected on Fifth Amendment grounds and sought a protective order to shield the claimants’ immigration status from discovery. The Court denied the EEOC’s motion for a protective order (and its subsequent motion for reconsideration), finding that discovery into the claimants’ immigration status was relevant to the issue of the amount of certain actual pecuniary damages to which they may be entitled and their alleged emotional distress damages. The EEOC petitioned the Ninth Circuit for interlocutory review, but on November 15, 2011, its petition was denied.

Following the Ninth Circuit’s denial of its petition for review, the EEOC continued to instruct several claimants to assert the Fifth Amendment privilege when asked about their immigration status.  In response, Evans Fruit filed a motion for sanctions pursuant to Fed. R. Civ. P. 37(b), arguing that the EEOC cannot use the Fifth Amendment as both a sword and a shield, i.e., by seeking pecuniary and non-pecuniary damages while simultaneously preventing the company from discovering information related to the damages sought by the Commission. In light of the EEOC’s violation of the Court’s prior discovery orders, Evans Fruit argued that the EEOC should be barred from recovery of damages for the non-disclosing claimants.

In a blunt and critical opinion, the Court found that “there are consequences” when the Fifth Amendment is asserted, even if the assertion is proper. Id. at 2. After the Ninth Circuit denied review, the Court stated that “it should have been apparent to the EEOC that some of the claimants now had a choice to make: either continue to be part of the litigation and provide answers in discovery subject to the protective order, or decline to … be part of the litigation.”  Id. at 2-3. The Court questioned whether the EEOC had even explained the consequences of asserting the Fifth Amendment to the claimants. Id. at 3. Accordingly, Judge Suko gave the claimants “a final opportunity to provide the answers sought by” Evans Fruit and ordered them to re-appear for further depositions — significantly, at the EEOC's expense — and to provide full answers to Evans Fruit’s written discovery requests concerning their immigration status within 10 days. Id. Any claimant who fails to respond and appear for their deposition will be barred from recovering any monetary damages. Id.

The ruling in EEOC v. Evans Fruit is significant for several reasons. First, it holds that Title VII claimants’ immigration status is relevant and discoverable in connection with claims for pecuniary and non-pecuniary damages. Additionally, while the EEOC might argue that claimants may be permitted to invoke the Fifth Amendment to prevent employers from discovering their immigration status, asserting the privilege may preclude the claimants from recovery any monetary relief. Lastly, Judge Suko’s ruling cautions litigants, including the EEOC, to think twice before disregarding a court's prior discovery orders.