Impact of the Supreme Court's Action and Inaction on the Workplace

Published Wednesday, January 23, 2019

As you may recall, in November of 2018, the Trump administration asked the Supreme Court of the United States (SCOTUS) to review the Deferred Action for Childhood Arrivals (DACA or Dreamer) Program in hopes of putting an end to the program. To recap, DACA is an Obama-era federal program that grants undocumented immigrants who had arrived in the United States before the age of 16 (among other factors), a temporary work status and the opportunity to defer deportation for two years with a chance of renewal.

On January 22, 2019, SCOTUS released an order granting or denying review of a list of cases that were before the Court. Notably missing from this list was DACA – SCOTUS decided not to take action to determine if the program should be phased out. The Supreme Court’s inaction likely means that a DACA decision will not be rendered until the year 2020 – assuming SCOTUS decides to hear the case.

Without action from SCOTUS, DACA remains active and the nearly 800,000 “Dreamers” are currently able to apply for their renewals, although the program is not accepting new applicants. With this, employees on a “Dreamer” status may renew for active work authorization and “Dreamers” with current work authorization are able to continue working.

Although there remains much uncertainty around the status of DACA, it is important to remember that “Dreamers” cannot receive any differential treatment in the workplace from other employees. However, as an employer, if a “Dreamer’s” work authorization expires without renewal, you would be required to terminate that employee for lack of proper work status.

In other employment news, SCOTUS’ released order also revealed that the Court failed to take action in determining whether discrimination against an employee on the basis of sexual orientation and gender identity constitutes unlawful employment discrimination under Title VII of the Civil Rights Act of 1964.

Due to the Supreme Court’s current inaction and lower court’s differing opinions, there continues to remain a lot of uncertainty surrounding sexual orientation and gender identity discrimination in the workforce under federal law. However, Oregon laws specifically prohibit employment discrimination based on sexual orientation and gender identity and employers must comply with those prohibitions regardless of the uncertainty at the federal level.

Cascade will continue to monitor and update you on any DACA and Title VII related news. If you have any questions, please let us know!

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