Without the paycheck accrual rule, many commentators feared that victims of pay discrimination would be unable to investigate, uncover, and charge discrimination against their employer within Title VII’s short limitations period. Justice Ginsburg dissented in Ledbetter, arguing that the Court’s rule would prove disastrous for victims of pay discrimination, who will frequently fail to file a timely charge because they are unaware of the fact that they have been victimized.³ She called upon Congress to take the lead and correct what she called the majority’s “parsimonious reading of Title VII.”⁴ Congress accepted that challenge and passed the Lilly Ledbetter Fair Pay Act (Ledbetter Act), which amended Title VII to codify the paycheck accrual rule.⁵

This Editorial examines the problems inherent in the Ledbetter Act and argues that either of two alternative approaches—(1) an injury discovery rule or (2) the application of equitable tolling for cases of fraudulent concealment—would be superior to the Ledbetter Act’s paycheck accrual rule.

 
I.
Problems with the Ledbetter Act’s Paycheck Accrual Rule

The Ledbetter Act’s paycheck accrual rule suffers from several shortcomings. First, it makes the limitations period for a particular class of discrimination cases dependent on a factor completely divorced from the discriminatory intent that gives rise to the claim. The act of paying wages to an employee does not, on its own, suggest that an employer is engaging in discrimination; yet under the Ledbetter Act, this is precisely what determines the relevant limitations period. This leaves today’s management responsible for the sins of its predecessors, about which it might not have been aware or acquiescent. While in some cases it may be beneficial for new management to investigate the pay disparities that it inherited from prior management in order to ferret out past discrimination, the game might not be worth the candle. New managers will have to mine through years of data and reports in order to second guess the motivations of their distant predecessors. Far removed in time from the relevant events, they will likely be in a poor position to determine which pay decisions were legitimate and which were discriminatory.

Second, the paycheck accrual rule seriously undermines the societal interest in repose embodied in statutes of limitations. The rule gives little credence to this interest because it renews the limitations period for pay claims with each paycheck, meaning that some plaintiffs will be able to bring claims about pay decisions made decades in the past.

Third, the paycheck accrual rule only benefits a select number of victims of discrimination—a group that prima facie is no more deserving of protection from harsh limitations periods than other victims of discrimination. It does nothing to help plaintiffs who want to bring claims alleging discrimination in employer decisions about, for example, bonuses or firings. Even the employee who suffered from past discrimination and only learns of it long after she has left the discriminator’s employ finds no solace in the Ledbetter Act, having received no “tainted” paychecks within the limitations period.

Fourth, the paycheck accrual rule gives a windfall to many undeserving plaintiffs. The Ledbetter decision generated uproar because of the perception that it created unfairness for plaintiffs who were unaware that they had been victimized, yet the Ledbetter Act’s more generous limitations period is not contingent on a plaintiff’s ignorance of the discrimination against her. Even those who are fully aware that they have been discriminated against receive a new limitations period each time they are paid, raising the concern that plaintiffs will unfairly use the more generous limitations period to their advantage, long after learning of the discrimination.

Finally, the paycheck accrual rule reduces employees’ incentives to seek out and discover pay discrimination—an important objective of statutes of limitations.

 
II.
Alternative Approaches to the Paycheck Accrual Rule

In light of the shortcomings of the Ledbetter Act’s paycheck accrual rule, it is worth considering alternatives that could address the problem of time-barring plaintiffs who were unaware, through no fault of their own, that they had been victimized. This Part argues that two such alternatives—(1) a so-called “injury discovery rule,” in which the limitations period begins only when the plaintiff becomes aware that she has been injured, and (2) the doctrine of equitable tolling for cases in which an employer’s fraud disguised the presence of pay discrimination—are both superior to the paycheck accrual rule. 

 
A.     The Injury Discovery Rule

A discovery rule gives extra filing time to a plaintiff who, because of blameless ignorance of facts vital to her case, does not bring her claim until long after the complained-of conduct has occurred. Such a rule protects employees from having their suits time-barred when they do not know they have been victimized.

One type of discovery rule—the “injury discovery rule”—triggers the limitations period when the plaintiff discovers or should reasonably have discovered that she has been injured. An injury discovery rule, if applied to Title VII, would protect deserving plaintiffs and better address the concerns Justice Ginsburg raised in her Ledbetter dissent, without the drawbacks of the paycheck accrual rule.

An injury discovery rule is preferable to the paycheck accrual rule because it encompasses more deserving claims, including those of employees who experienced discrimination in the distant past that does not affect their wages today (for example, victims of discriminatory bonuses). An injury discovery rule would also prevent differential treatment of the victim who continues working for the discriminatory employer and the victim who does not. Furthermore, unlike the paycheck accrual rule, an injury discovery rule bars knowing plaintiffs from sleeping on their rights and bringing claims years later, at a time when the deterioration of evidence has disadvantaged the defendant’s ability to defend itself.

 
B.     Equitable Tolling/Fraudulent Concealment

Another option that would give deserving pay discrimination plaintiffs sufficient time to file while avoiding the unfairness inherent in the paycheck accrual rule is the use of equitable tolling. Equitable tolling halts the running of the limitations period when, through an act of fraud, the defendant prevents the plaintiff from filing a claim in a timely manner. If an employer, through “fraud or concealment of the existence of a claim,” prevents an employee from discovering pay discrimination, the doctrine of equitable tolling allows for suspension of the limitations period “until the fraud or concealment is, or should have been, discovered.”⁶ Equitable tolling is also superior to the paycheck accrual rule in addressing Justice Ginsburg’s concern that rigid limitations periods keep deserving but blamelessly ignorant plaintiffs out of court.

The doctrine of equitable tolling protects deserving plaintiffs who are diligent about their rights but face obstacles to bringing suit without, as the paycheck accrual rule does, rewarding plaintiffs who sit on their rights. This provides the right incentives to plaintiffs by encouraging them to investigate and protect their rights, since a failure to do so could lead a court to find their claim time-barred, even if they were unaware that they had been injured. At the same time, equitable tolling does not subject employers to endless limitations periods. An equitable tolling regime, unlike a paycheck accrual system, allows an employer who does not engage in fraud to achieve repose as to events falling outside the limitations period.

 
III.
Equitable Tolling and Pay Secrecy Rules

In the context of pay discrimination, plaintiffs might assert that employers have committed fraud by covering up the fact that an employee was paid less due to her race, color, religion, sex, or national origin. Increasingly, information about pay discrimination is hidden from employees by policies that bar them from discussing their pay with coworkers.⁷ Though the National Labor Relations Board and courts have struck down workplace pay secrecy rules as violations of employees’ rights under the National Labor Relations Act, these rules persist.

Such workplace rules effectively prevent employees from discovering that they have been the victims of pay discrimination. As such, the Title VII limitations period for employees subjected to pay discrimination in workplaces with such pay secrecy rules should be tolled until the employees discover (or reasonably should discover) that they have been victimized. Unlike the Ledbetter Act’s paycheck accrual rule, this doctrine could reach any employee who was discriminated against and whose employer took steps to block her from discovering that fact.

Section 550 of the Restatement (Second) of Torts recognizes a claim for fraudulent concealment.⁸ As comment (b) of section 550 notes, one of the common ways in which fraudulent concealment is effectuated is “when the defendant successfully prevents the plaintiff from making an investigation that he would otherwise have made, and which, if made, would have disclosed the facts; or when the defendant frustrates an investigation.”⁹

For example, when an employer tells an employee that she cannot discuss her salary nor inquire about how much other employees earn on pain of reprimand or discharge, the employer prevents the employee from making an inquiry and keeps her from discovering that she earns less than her male counterparts. Such information is undoubtedly material for an individual trying to determine if her rights have been violated by discriminatory pay decisions. This analysis does not suggest that an employer commits fraud—and that the limitations period is therefore tolled—every time it engages in pay discrimination and fails to inform the employee thereof. Rather, the employer perpetrates fraud when it “frustrates [the employee’s] investigation”¹⁰ by placing roadblocks in the way of her efforts to uncover pay discrimination.

The equitable tolling doctrine therefore protects the most worthy plaintiffs (those who are diligent about protecting their rights) against the stringency of Title VII’s short limitations period, without creating the problems of the paycheck accrual rule. While equitable tolling on its own does not cover all victims of pay discrimination, it helps those most in need without incentivizing the stale suits that will likely accompany the Ledbetter Act’s paycheck accrual rule. 

 
Conclusion

The paycheck accrual rule, which resets the limitations period for pay discrimination claims with each paycheck an employee receives, is a poor solution to the problem highlighted by the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.: the difficulty that victims of pay discrimination face in detecting discrimination and bringing suit within Title VII’s limitations period. Specifically, the paycheck accrual rule gives inadequate weight to the societal interest in repose and protects select victims of pay discrimination without offering anything to other victims who are equally, if not more, deserving of extended filing time. Either application of an injury discovery rule or the use of equitable tolling for cases of fraudulent concealment would do a better job of providing access to justice for people who are blamelessly ignorant of the fact that they have been discriminated against, while still preserving the principle of repose.

Acknowledgments:

Copyright © 2010 NYU Law Review.

Jeremy A. Weinberg received his J.D. from New York University School of Law in 2009.

The ethical questions start with whether or not a lawyer can represent an undocumented worker in employment-related litigation. In light of prohibitions on lawyers assisting in conduct that is criminal or fraudulent, the answer to the question is not necessarily evident. Model Rules of Professional Conduct Rule 1.2(d) states, “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .”¹ In analyzing whether representation of an undocumented worker in employment related litigation assists the client in criminal or fraudulent action, it is helpful to think along a continuum. At one end of the continuum are instances in which the lawyer directly advises a client to commit a crime or fraud or directly participates in the client’s crime or fraud. For example, Rule 1.2(d) would bar representation if a lawyer advised a client to make a fraudulent conveyance or prepared documents knowing they would be used for fraudulent purposes.  On the other end of the spectrum are instances in which the client commits a crime or fraud that is so wholly unrelated to the representation that it is obvious Rule 1.2(d) would not prohibit the attorney’s representation. For example, assume a client seeks compensation under the Fair Labor Standards Act, and the state counterpart, for wages owed for completed work. In the course of representation, the client discloses to his attorney that he was previously violent toward his wife. Even assuming that his actions constituted an assault, nothing prohibits his representation in the claim for unpaid wages because Rule 1.2(d) recognizes a distinction between assisting the client in the commission of a crime or fraud and merely being aware that the client previously committed a crime or fraud.

A gray area exists in between these extremes—instances in which a lawyer’s actions can be construed as “passively assisting” the client in the commission of a crime or fraud. Consider the following factual scenarios and how they implicate the underlying policies of Rule 1.2(d).

Suppose the client enters lawfully but thereafter uses false immigration documents to obtain employment and still possesses the documents. The client seeks the lawyer’s advice and representation to recover damages and pursue reinstatement for a discriminatory termination. In this hypothetical, there are several steps the lawyer might take to comply with Rule 1.2(d). First, since it could be considered an ongoing crime to possess false immigration documents, the ethically prudent lawyer should advise the client that possession of such documents is illegal and recommend that the client no longer retain possession of them. The lawyer could then explain to the client that the ethical rules would not permit her to bring a claim seeking reinstatement based on the false immigration documents. If the client had since obtained lawful immigration status, then the lawyer could proceed with the representation, including a claim for reinstatement. If not, then she could proceed with only the claim for damages based on the discriminatory firing on the grounds that representation in a claim for damages would not further the crime of possession of false immigration documents.

In another example, assume the client enters the U.S. lawfully, but uses a fraudulent Social Security number to obtain employment and the employer thereafter fails to pay him for hours worked. Does a lawyer’s representation of the client in a wage and hour claim in this context assist him in criminal or fraudulent conduct? It is a crime to use a false Social Security number to obtain benefits but courts have found that the crime is completed when the false representation is made. Thus, representation of the client to obtain wages he is due does not directly assist him in that completed crime. There are arguments however that the representation indirectly assists the client to remain unlawfully in the United States by providing financial assistance. And, while unlawful presence in the United States is not currently a crime, it may amount to fraud. Is this type of indirect assistance that Rule 1.2(d) was designed to prohibit?

The question is best analyzed by focusing on the nexus between the lawyer’s actions and the client’s criminal or fraudulent activity. While the lawyer in this example has not directly caused the client to remain in the United States, there still exists a potential causal link between the representation and the presence. If the lawyer’s actions permit the worker to recover wages, that money may allow the worker to remain in the U.S. unlawfully or make it more attractive to do so. However, the connection between the lawyer’s actions and the client’s crime in this context is somewhat removed and in light of established legal and public policy principles should not be construed to bar representation of undocumented workers.

Our legal system is premised on the notion that the law should be knowable and that law is, by nature, public information. One of the lawyer’s roles is to provide clients access to the law so long as providing access is done within the bounds of the law. In fact, the preamble to the Model Rules of Professional Conduct talks about the lawyer’s obligation to assure access to the legal system. If Rule 1.2(d) were interpreted so broadly as to prohibit a lawyer from representing an undocumented worker in employment-related civil litigation, undocumented workers might be legally entitled to relief but unable to access the legal system.

While the legal system does recognize the integral relationship between rights and remedies, having a substantive right without the ability to enforce it is not unprecedented. Immunity from suit, standing limitations, narrower standards for private enforcement of civil rights, and legislation prohibiting access to federal courts are all examples where remedies have been restricted by the courts or Congress. However, each of these limitations, whether created by the courts or Congress, has independent rationales underlying it that do not relate to the attorney-client relationship. Rule 1.2(d), on the other hand, is a rule of professional responsibility designed to keep the provision of legal services within proper bounds. As such, the examples from other areas of law should not be determinative of the rights without a remedy argument in this context.

It could also be argued that because an undocumented worker intentionally ignores legal obligations, other remedies afforded by the legal system should be foreclosed to that individual. Like with the equitable doctrine of unclean hands, wrongdoers should not be able to avail themselves of legal protections when they have otherwise disregarded the law. On the other hand, however, the legal system is full of rights and protections, particularly procedural protections, that apply regardless of whether the litigant broke the law. For example, prisoners are entitled to challenge the conditions of their confinements as well as access the courts for general civil matters, such as divorce, and criminal defendants are entitled to a whole host of procedural protections designed to preserve their rights. Thus, a concern about clean hands would be addressed better by Congressional action that defines or limits the substantive rights of undocumented immigrants rather than through rules of professional responsibility.

Thus, while lawyers representing undocumented workers in employment-related civil litigation should be mindful of 1.2(d) prohibitions, it is unlikely that the rule would bar a lawyer’s representation of such clients.

If the ethical rules do not prohibit representation of undocumented workers in employment-related civil litigation, lawyers then confront the question of whether to protect or disclose a client’s immigration status. The lawyer’s decision to protect or disclose the information is, in the first instance, dependent upon whether or not immigration status is relevant to the underlying lawsuit. In deciding questions of relevance, courts are forced to address the interplay between immigration and labor and employment statutes and their respective policy rationales. Prior to 2002, courts confronting these issues developed a body of law that harmonized these two distinct areas of jurisprudence, finding, in many contexts, that undocumented workers were entitled to statutory protections in the workplace. This body of law shifted in 2002 when the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v. National Labor Relations Board and found that back-pay for undocumented workers under the National Labor Relations Act (NLRA) was foreclosed by federal immigration policy. Since the Hoffman decision, lower courts have struggled to define the parameters of the case, and, while the jurisprudence is still evolving, many courts have limited Hoffman’s reach and found undocumented workers entitled to seek legal remedies for workplace violations under a variety of statutes.

If immigration status is relevant to the underlying litigation, the information will be discoverable unless the client is entitled to claim a privilege. Assuming immigration status is relevant, the most likely claim of privilege would be a client’s claim of privilege against self-incrimination. Both the employer and employee in an employment-related civil case brought by an undocumented worker might have reason to claim the Fifth Amendment privilege. It is unlawful to enter the country without inspection, to present false documents upon entry, or to use false documents to obtain employment. Thus, information sought from the employee through discovery or questions asked at trial could lead to criminal liability. Under the Immigration Reform and Control Act (IRCA), employers can be criminally liable for knowingly hiring undocumented workers. An employee could ask questions in discovery regarding the employer’s general practice of employee verification and the specifics of other employee immigrant workers, the answers to which could lead to criminal liability.

In light of the courts’ discretion to determine the impact that claiming privilege will have on the litigation, it is difficult to predict the precise consequences for an undocumented worker. However, lawyers should advise clients that pleading the Fifth Amendment privilege against self-incrimination might result in certain claims or evidence being barred or the action being dismissed in its entirety. Lawyers should also advise clients of the potential consequences disclosure of immigration status could have on the client outside of the pending litigation, including potential deportation, criminal charges and bars upon reentry into the U.S. Ultimately, once informed of the potential consequences, this is a decision for the client to make.

If, on the other hand, immigration status is determined not relevant to the underlying litigation, the client’s immigration status would constitute confidential information and lawyers would be obligated to protect this information unless they were permitted or mandated to disclose it. The Model Rules of Professional Conduct contain a strong obligation to keep client information confidential as well as rules designed to prohibit lawyers from counseling or assisting a client in fraudulent or criminal activities. Proposed and existing legislation that characterizes an undocumented worker’s entry, presence or work in this country as criminal or fraudulent, thus, creates a tension between the lawyer’s confidentiality obligations and the potential for permissive or mandatory disclosure.

Pursuant to Rule 1.6, all information relating to the representation,² whether it comes from the client or another source, is confidential. In the absence of implied authorization or informed consent to disclose, Rule 1.6 mandates that the information be kept confidential unless one of six express exceptions apply. In the absence of a court order, which constitutes one of the exceptions, none of the other exceptions permits the disclosure of immigration status and related client actions. There is no potential for death or substantial bodily harm; the issues do not involve the lawyer’s compliance with the rules of professional conduct; and there is no dispute between the lawyer and the client related to the representation. The remaining two exceptions involve disclosure to prevent a client from committing a crime or fraud resulting in substantial injury to the financial interests of a third party, or to mitigate damages that flow from such crime or fraud. These exceptions appear inapplicable to the undocumented worker dilemma because there is no substantial injury to the financial interests of a third party. Additionally, in order for this exception to apply, the lawyer has to be involved in the client’s crime or fraud. It is unlikely that mere representation of an undocumented worker in a civil employment matter would rise to the level of involvement contemplated by this exception.

Assuming Rule 1.6 requires lawyers to keep immigration status confidential, are there other rules that mandate or permit disclosure? Two rules address the lawyer’s obligation to disclose if a client is engaged in criminal or fraudulent acts. First, Rule 3.3(b) requires lawyers representing clients they know are intending to engage or are engaging in criminal or fraudulent conduct to take reasonable remedial measures, including disclosure of such information to the tribunal. Pursuant to that rule, only information “related to the proceedings” must be disclosed to the tribunal. The comments to Rule 3.3(b) help to define “related to the proceedings” by specifically identifying “criminal or fraudulent conduct that undermines the integrity of the adjudicative process.”³ The comments further define the term by identifying the following as conduct that would be implicated by Rule 3.3(b): “bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so.”⁴ Rule 3.3(b) is concerned with the rules of the game and the mechanics of trial, as opposed to the substance of the underlying claims.

The other relevant provision, Rule 4.1(b), requires lawyers to disclose material facts in order to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Given that the application of these rules arises in instances where immigration status has been determined not to be relevant to the underlying proceedings, it is extremely likely that the disclosure provisions of 4.1(b) do not apply. On the other hand, the term “material” arguably could be construed more broadly than “relevant.” If this were the case, then the lawyer would have to proceed to analyze the additional limitations imposed by 4.1(b). One limitation set forth in Rule 4.1(b) is that a lawyer shall disclose otherwise confidential information only when “necessary to avoid assisting” a crime or fraud. As analyzed above, it is unlikely that mere representation of an undocumented worker in an employment-related civil matter would amount to assisting in the commission or furtherance of a crime or fraud. Further, even if the lawyer’s actions were construed as assisting the client in a crime or fraud, Rule 4.1(b) states that the lawyer may resist disclosure of material if it is otherwise protected by Rule 1.6.

To understand the contours of a lawyer’s ethical obligations, it is helpful to apply these rules to a hypothetical. Assume the client is committing an ongoing crime that is related to the employment situation. The client enters lawfully, but thereafter uses false immigration documents to obtain employment and still possesses the documents. The employee seeks the lawyer’s assistance for a discriminatory termination. The lawyer agrees to represent the client after advising the client that possession of false immigration documents is unlawful and explaining to the client that she will not seek reinstatement or back-pay in the claim. Does the lawyer have an obligation to disclose the information about false work papers to a third party under Rule 4.1(b) or to the tribunal under Rule 3.3(b)?

Possession of false immigration documents to obtain work is likely to be considered a continuing crime. Since these are cases in which immigration status has been determined not to be relevant to the underlying proceedings, the lawyer would be barred from disclosing it to third parties under Rule 4.1(b) because it is not a “material” fact. Even if it were determined that status was related or material to the proceeding, Rule 4.1 still requires there to be a relationship between the crime or fraud and the lawyer’s actions. Specifically, the lawyer shall disclose confidential information only when necessary to avoid assisting in the commission or furtherance of the client’s crime or fraud. So long as the lawyer advises the client that possession of such documents is illegal, does not seek reinstatement or back-pay, and seeks only compensatory damages, it is difficult to construe the lawyer’s representation of the client in a claim for discriminatory termination as furthering the client’s use of false papers to obtain employment. Further, disclosure to third parties under Rule 4.1(b) would be barred because the related information is confidential under Rule 1.6 and no exceptions apply.

Pursuant to Rule 3.3(b), is the use of false immigration documents to obtain work “related to the proceedings”? While the use of false immigration documents to obtain work might subject the client to criminal and civil liability, it does not, by itself, relate to the proceedings or undermine the integrity of the adjudicative process as those terms are defined in Rule 3.3(b). If the client decided to make false statements under oath or present false evidence, and the lawyer was unable to dissuade the client, the lawyer would be required to comply with the disclosure requirements set forth in 3.3(b).

Thus, in general, Rule 4.1(b) does not appear to mandate disclosure to third parties because of the Rule 1.6 limitations. Disclosure to a tribunal under Rule 3.3(b) would only be mandated if status were determined to be “related to the proceedings.” Given the meaning of “related to the proceedings” and the fact that these issues will arise only where status is found not relevant to the underlying claim, a mandated disclosure to the tribunal pursuant to Rule 3.3(b) would seem to be required only if the client took some subsequent action in the context of the proceedings that affected the integrity of the adjudicative process, such as lying on the stand or presenting false evidence. However, if the lawyer counsels the client appropriately, disclosure to the tribunal under Rule 3.3(b) should not be necessary.

Lawyers representing employers will also be affected by the immigration status of opposing parties. For a lawyer representing an employer, ethical issues are most likely to arise when the lawyer inquires about the employee’s immigration status in an attempt to intimidate the employee, either during discovery or at trial. In order to evaluate any ethical limitations, the lawyer first needs to assess whether immigration status is relevant to the underlying litigation. If the question of relevance has not been decided by a court, or if a court has decided that status is relevant, inquiry into the opposing party’s immigration status would likely be permissible and ethical. If, however, immigration status is not relevant to the underlying litigation, several ethical rules might limit inquiry by the employer’s attorney.

The first limitation stems from Rule 4.4(a) which states that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”⁵ Where immigration status is not relevant, the question is whether the employer has a “substantial purpose” to inquire. Given the information’s lack of substantive consequence to the litigation, the inquiry likely lacks “substantial purpose” and instead is likely being used to gain unfair advantage in the litigation. Further, Rule 8.4(d) states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”⁶ The comments help define the parameters of this rule and state that “[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.”⁷ When immigration status is not relevant, intentional inquiry into such information may reflect bias or prejudice based upon national origin. And, if the inquiry deters the employee from proceeding with her claims, it could be construed as prejudicial to the administration of justice.

A second, but somewhat related, limitation can be found in Rule 3.4(d), which states that a lawyer shall not, “in pretrial procedure, make a frivolous discovery request.”⁸ Again, if a court has determined that immigration status is not relevant to the underlying litigation, inquiry by the employer’s attorney as to the employee’s immigration status could be viewed as a frivolous discovery request under Rule 3.4(d).

A third limitation involves the use of threats of criminal prosecution as a way to gain advantage in a civil action. This could happen expressly if the employer threatens to report the worker to police or immigration officials. It could also arise implicitly through questions about immigration status in the civil case. Under the Model Rules of Professional Conduct, a threat to bring criminal charges to advance a civil claim would violate the Model Rules if the criminal wrongdoing was unrelated to the client’s civil claim, if the lawyer did not believe both the civil claim and the potential criminal charges to be well-founded, or if the threat constituted an attempt to exert or suggest improper influence over the criminal process.⁹

In this context, since it has already been determined that immigration status is not relevant to the underlying litigation, immigration status may not be sufficiently related to the claim to insulate the lawyer from improper ethical conduct. Further, in the absence of a relationship between the threat and the underlying claim, the actions of the employer’s lawyer might be construed as extortion, which is a disciplinary offense under Rule 8.4. The Model Penal Code defines extortion as obtaining the property of another through threats, including threats to accuse another of a criminal offense. However, if the employer has an honest belief that the charges were well founded, the actions would not constitute extortion.

If the employer threatens criminal prosecution without any actual intent to proceed with such a claim, the lawyer’s actions could violate Rule 4.1, which imposes upon lawyers a duty to be truthful when dealing with others. And, even if the lawyer’s actions do not amount to extortion because they are based upon an honest belief that the charges are well founded, if his purpose in making the threat is merely to harass a third person, his actions could constitute a violation of Rule 4.4(a).

This piece identifies some of the issues that arise in the context of litigating employment-related disputes involving undocumented workers and attempts to apply the rules of professional conduct to help resolve these issues. Though at times the analysis of these issues requires an application of the professional rules that borders on the hyper-technical, a thorough and precise application of the rules ultimately results in a set of guidelines that are simple enough to be useful to practitioners. The correct application of these guidelines, and of the rules of professional conduct, will guide lawyers in the appropriate handling of information related to the employee’s immigration status.

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Christine N. Cimini is Associate Professor of Law at University of Denver, Sturm School of Law.

This Legal Workshop Editorial is based on the following full-length Article:   Christine N. Cimini, Ask, Don’t Tell: Ethical Issues Surrounding Undocumented Workers’ Status in Employment Litigation, 61 STAN. L. REV. 355 (2008).

At first glance, the ADA’s reasonable accommodations provision seems quite clear: an employer engages in discrimination if it fails to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . .”¹ Upon closer examination, however, one discovers that the reasonable accommodation mandate is rather elusive. 

The ADA does not explicitly define the term “reasonable accommodation”; instead, it provides a series of examples of acceptable accommodations.  According to the ADA, reasonable accommodations include job restructuring, part-time or modified work schedules, and reassignment to vacant positions.  Today most employers satisfy these requirements by providing auxiliary aids and services or modifying policies, practices, and procedures to accommodate disabled employees.  However, some employers remain reluctant to reassign employees who become disabled to vacant positions, and the courts have not yet uniformly required employers to do so.

A recent example of the so-called “mandatory reassignment” controversy involves retail giant Wal-Mart.  Pam Huber worked for Wal-Mart as a dry grocery order filler and earned $13.00 per hour.  While working for Wal-Mart, Huber sustained a permanent injury to her right arm and hand, which prevented her from performing the essential functions of the order-filler job.  As a result of her disability, Huber asked Wal-Mart to reassign her to a router position as a reasonable accommodation under the ADA.  Rather than immediately reassigning Huber, Wal-Mart told her that she must apply and compete for the router position just like any other applicant.  Wal-Mart stated that its reassignment decision was consistent with its policy of hiring the most qualified applicant for any position. 

Wal-Mart found that Huber was qualified to perform the duties of the new job but ultimately awarded the position to a more qualified candidate.  Wal-Mart then placed Huber at a different facility in a janitorial position that paid $6.20 per hour.  Huber filed suit against Wal-Mart, alleging that the ADA compelled Wal-Mart to reassign her to the router position as a reasonable accommodation for her disability.  The district court held for Ms. Huber, but in Huber v. Wal-Mart Stores, Inc.,² the Eighth Circuit reversed, holding that the ADA does not require an employer to reassign a qualified disabled employee to another position when the employer can fill the vacant position with a more qualified employee. 

With the Huber decision, the Eighth Circuit joined a circuit split: must an employer reassign a disabled employee to a vacant position when the employee is not the most qualified applicant?  Thus far, the Tenth and D.C. Circuits have required reassignment as a reasonable accommodation, while the Seventh Circuit has not.  The U.S. Supreme Court initially granted certiorari in the Huber case, but ultimately dismissed the writ after the parties settled the dispute.  Thus, the circuit split continues.

The circuit split over mandatory reassignment revolves largely around two arguments.³ The circuits that support mandatory reassignment argue that Congress designed the ADA to compel employers to make reasonable accommodations for disabled employees, not simply to consider providing accommodations.  If reassignment is optional, the argument goes, the ADA’s reassignment provision lacks any bite.  The circuits that have rejected mandatory reassignment contend that the ADA is an antidiscrimination statute, not a mandatory preference statute.  For a court to force employers to reassign disabled employees to vacant positions, even as a last resort, would constitute illegally-mandated affirmative action. 

Unfortunately, no circuit court has explicitly acknowledged that there are different ways to understand the concept of “disability” and that each understanding provides a different answer to the mandatory reassignment question.  My Note attempts to move the legal discussion in this direction.

Disability scholars have recognized four primary models or theories to understand disability.  The “moral model” regards disability as the result of sin.  The “medical model” sees disability as a defect that must be cured.  The “rehabilitation model” is quite similar to the medical model, holding that society needs to rehabilitate disabled persons through training and therapy in order to eliminate their individual deficiencies.  Finally, the “socio-political model” situates the “problem” of disability externally, in stereotypical attitudes and an environment that fails to meet the needs of the disabled, rather than within disabled individuals themselves.  Today, the most prominent models include a hybrid medical-rehabilitative model and the socio-political model.

The medical model of disability proffers the medical profession as the rescuer of the disabled population.  The disabled population is sick, and society should excuse the sick population from normal societal obligations like attending school or working a job.  Like the medical model, the rehabilitation model locates the difficulties faced by a disabled person within the disabled individual—rehabilitation is needed to cure the individual’s defects.  The idea that disabled individuals need training and therapy gained acceptance when disabled veterans began to return from the World Wars and needed help readjusting to life at home.  One can see the modern influence of the rehabilitation model in the Vocational Rehabilitation system, which currently provides services to disabled individuals so that they may obtain and maintain gainful employment.

In contrast, the socio-political model regards disability as an ordinary aspect of life.  Some individuals have physical or mental impairments while others do not; individuals who have such impairments struggle at certain tasks, not because of personal defects, but because society has failed to design physical and social structures consistent with their capabilities. For many individuals with physical, mobility-related impairments, the primary barrier to full societal participation stems from architectural barriers—buildings without elevators, narrow paths that cannot accommodate mobility equipment, etc.; likewise, communicative barriers continue to restrain individuals with sensory impairments.  According to the socio-political model, such impairments would largely disappear in a world adapted to the needs of all its inhabitants.  Today’s “disability problem” is not that some individuals have personal “defects”; rather, the problem is that our present environment was only designed for the average able-bodied person.  Only the socio-political model recognizes these realities.

A socio-political understanding of disability should help inform how courts interpret the ADA’s reasonable accommodations provision.  The ADA was watershed legislation because it adopted (at least implicitly) many of the tenets of the socio-political model of disability.  For example, the ADA’s findings declare that the “disability problem” resides in the external environment, not within disabled individuals.  The ADA findings state that the primary obstacles to the disabled achieving full participation in society include the discrimination imposed by architectural, transportation, and communicative barriers.

Furthermore, the reasonable accommodations provision itself seems to embody a socio-political understanding of disability.  First, the provision demonstrates that Congress understood that people with disabilities cannot fully participate in society until public and private entities modify the physical environment.  The problem of disability is not located in the person who must use a wheelchair for mobility; instead, it is located in societal structures that exclude the disabled through narrow doorways and entrances without ramps.  Second, the ADA reasonable accommodations provision mandates reform; it properly recognizes that combating systematic exclusion requires society to restructure the environment.

If one agrees that we as a society should view disability through a socio-political lens, either because a socio-political model accurately describes the world around us or because the ADA is based on such a model, then one must also agree that mandatory reassignment is appropriate.  From a socio-political perspective, one sees that many workplace environments exhibit the same biases as other physical environments.  The problem is not that the employee in a wheelchair is unwilling to attend a corporate meeting; instead, the problem is that the meeting is held in a building without an elevator.  As a result, the solution is not to change the disabled employee; rather, the solution is to reshape the environment.  In the employment context, reshaping the environment means requiring employers to make reasonable accommodations—including, as a last resort, reassignment—that allow disabled individuals to compete alongside others in the workplace.

Only mandatory reassignment reshapes the employment environment.  Perhaps best illustrated with an analogy, a “wholly merit-based” reassignment policy like the one at Wal-Mart assumes that the disabled population may fairly compete in the “employment race” so long as all contestants are evenly lined up at the starting line.  The mandatory reassignment critics exclaim: “Do not let anyone have a head start!”  Yet such an understanding ignores the environmental obstacles faced by the disabled community.  For many disabled people, the racetrack is already littered with obstacles like physical inaccessibility, communicative barriers, stigma, and discriminatory attitudes, many of which might prove insurmountable.  To ensure a fair race, society must force employers to clear the track, and if employers cannot clear the track, they should reassign the disabled contestants to an equivalent, but clear, track.  Thus, only mandatory reassignment puts disabled employees on truly equal footing with non-disabled employees.

By initially granting certiorari, the Supreme Court has acknowledged the circuit split over mandatory reassignment.  Though the parties in Huber v. Wal-Mart settled, preventing immediate Supreme Court resolution, the Court will likely have another opportunity to determine whether an employer must reassign a disabled, qualified employee to a vacant, equivalent position.  By exacerbating legal and business uncertainties and creating inconsistent legal rights for disabled Americans, the circuit split has assuredly created an incentive for various parties to litigate this issue in the future.  Thus, the remaining question is: how will the Supreme Court—or a previously “silent” circuit court—resolve the issue in the future?

My Note argues that courts should use a socio-political model of disability to interpret the ADA, and a socio-political understanding of disability requires an employer to reassign a disabled employee to a vacant, equivalent position when no other accommodation is reasonable.  Voluntary reassignment policies like the one used by Wal-Mart, even under the mantra of “meritocracy,” disguise the environmental obstacles that preclude full and fair economic participation by the disabled population. The ADA was watershed in its recognition that only affirmative steps to eliminate discrimination will allow individuals with disabilities to experience meaningful societal participation.  Courts should follow the ADA’s lead and embrace a socio-political model of disability by requiring reassignment.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Nicholas A. Dorsey is a J.D. Candidate at Cornell University Law School.

This Editorial is based on the following full-length Article:   Nicholas A. Dorsey, Mandatory Reassignment under the ADA: The Circuit Split and Need for a Socio-Political Understanding of Disability, 94 CORNELL L. REV. 443 (2008). Click Here for the Full Version