Supervisor’s Negative Comments Regarding Green Card Process did not Establish Animus Based on National Origin

The U.S. Court of Appeals for the Eighth Circuit has reaffirmed that an employee may not use a supervisor's negative comments regarding immigration status as evidence of national origin discrimination. In the case, Guimaraes v. SuperValu, Inc., a Brazilian supermarket employee working in the U.S. on an H-1B non-immigrant worker visa alleged that her supervisor had facilitated her termination because of her nationality. The employer, who had sponsored the employee's pending petition for legal permanent residency (i.e., her "Green Card"), argued that the employee was not terminated for any discriminatory reason, but rather for poor work performance. In response, the employee offered just one piece of evidence: her supervisor's statement that she wanted to have the Brazilian employee fired "and stop [her] Green Card process."   

The Eighth Circuit found that the supervisor's statement was not sufficient evidence to support her claim. Citing to U.S. Supreme Court case law, the Eighth Circuit observed that while aliens are protected from discrimination based on their nationality by Title VII, "nothing in [the law] makes it illegal to discriminate on the basis of citizenship or alienage." The employee, the court noted, had "conflate[d] citizenship or immigration status with national origin." Further, the court found, the term "green card" is not so "charged with national-origin discriminatory animus" that it should viewed as a "code word for [the employee's] national origin," as the employee had argued. The Eighth Circuit therefore affirmed the lower court's decision to grant summary judgment to the employer.  

The Eighth Circuit's decision is a good reminder to employers who utilize non-immigrant foreign labor that their employment decisions based upon employees' immigration status do not in and of themselves provide a basis for a discrimination claim. Regardless, employers must be very cautious when discussing or acting based upon employees'  immigration status -- while in this case it was the employee who conflated citizenship with nationality, an employer could very easily conflate the two ideas in its words or decisions and thereby create the basis for a claim of national-origin discrimination. Employers should always contact counsel whenever making an employment decision based upon immigration status.