Giving Discrimination the Ho-Heave

In 1995, Macan Singh, an undocumented worker from India, was brought to the Bay Area by his uncle, Charanjit Jutla, who promised him work and an education.

Instead, Singh was put to work at his uncle’s gas stations, where he stayed for three years working 12 hours a day, six days a week without pay. When Singh finally dared to ask for his back wages, Uncle Charanjit fired him. Worse, after learning that Singh had begun legal action to recover the nearly $70,000 owed to him, Jutla reported his own nephew to immigration authorities. Singh spent 15 months in INS detention before winning release on bond. 

Few people in the United States are more vulnerable than undocumented workers. At risk of deportation, they fall prey to unscrupulous employers who think they can continue to mistreat them with impunity. But undocumented workers have rights, too, and for the past 17 years Christopher Ho, senior staff attorney at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco, has been fighting to see that they’re enforced. 

In December 2003, Ho, the director of the Center’s National Origin, Immigration, Language Rights Program, took Singh’s case to trial before a federal jury as co-counsel. Ruling that Jutla had violated the federal Fair Labor Standards Act by making a retaliatory call to the INS, the jury awarded Singh $200,000 in compensatory and punitive damages. 

“As far as we know,” says Ho, “Singh’s was the biggest award ever received by an undocumented worker whose legal status was at issue. The threat of deportation is a powerful deterrent to the willingness of immigrant workers to press their claims in court. The outcome in Singh’s case vindicated the rights of these workers to be free from retaliation.”

Sitting in the conference room of the LAS-ELC, Ho, tall and slim with a thick head of gray hair, wears a baggy blue sweater, jeans and sneakers. He talks about the conflict between immigration and employment laws that makes cases like Singh’s so tricky. “The unchallenged right of immigration authorities to deport the undocumented,” says Ho, “works at cross purposes with the employment sanctions act Congress passed in 1986. Although that act made knowingly hiring undocumented workers illegal, it also said all workers were protected by federal and state employment laws.” 

The Singh verdict set another precedent. It was the first case tried in California—and possibly in the U.S.—in which an undocumented worker who suffered retaliation for asserting his rights was awarded damages after the 2002 Supreme Court ruling for Hoffman Plastic Compounds, Inc. v. NLRB. In Hoffman, the Supreme Court ruled that an undocumented worker fired for union activity was ineligible for back pay (pay he would have earned from the time he was fired unlawfully until the time of judgment in court). Ho had feared that the ruling would strengthen Jutla’s argument for not paying Singh, but the judge ruled that Hoffman didn’t speak to compensatory and punitive damages.

“The Hoffman ruling looked like a big setback for the rights of immigrant workers,” says Ho, “because we didn’t know how broadly the courts would interpret it. So far, our worst fears haven’t been borne out.”

Five years earlier, Ho tried a case similar to Singh’s. Silvia Contreras, a secretary, had quit her job because of unpaid wages and intolerable working conditions. She filed a claim for wages against her employer with the California Labor Commissioner. Immediately after her first hearing, she was arrested by the INS on the basis of a phone call made by her former employer. Represented by Ho, she filed an action against the company under the anti-retaliation provisions of the federal Fair Labor Standards Act. In a landmark decision, the judge ruled that the act protected Contreras against retaliation and entitled her to the same remedies, including compensatory and punitive damages, as all other workers.

“Arguing that an undocumented worker is protected by the law wasn’t intuitive,” says Ho. “The verdict was especially surprising because the judge was a conservative Republican. But he was a straight shooter and saw that if employers were allowed to retaliate against undocumented workers, it would gut the Fair Labor Standards Act.”

In 1999, Ho began litigating a Title VII language discrimination case, Rivera v. NIBCO, on behalf of Latino and Southeast Asian women workers at an irrigation manufacturing facility in Fresno. When the new owner, NIBCO, decided to downsize, it required all employees to pass a written test that called for a high degree of English proficiency. Thirty-six workers who had worked at the facility for more than a decade lost their jobs as a result of the test. In the lawsuit filed by the Law Center, Ho alleged that the test had no business justification and adversely affected a particular population. 

Although the original owner later bought back the company and rehired a majority of the workers, the case moved forward. When the discovery process began, the defense interrogated Ho’s client, Martha Rivera, about where she was born and when she came to the United States. “Much of the discovery process in immigration cases is intended to harass and scare people off,” says Ho. “We asked for a protective order to prevent the defense from asking immigration-related questions. The magistrate judge agreed and ordered that questions about our client’s immigration status be sealed and excluded from the record. We had expected an uphill battle, so we were elated by this outcome.”

The defendants, however, have been relentless opponents, asking for a reconsideration of the ruling several times, through several courts. After the Supreme Court turned them down, the case is back in district court, and Ho is waiting for a trial date to be set.

“It was a big victory to finally put closure on the issue of the protective order,” says Ho.  “Protecting the rights of the most vulnerable is in everyone’s self-interest because it holds employers to the same legal standards for all workers.”

Ho’s sensitivity to immigrant and language-rights issues stems from his parents’ experiences as immigrants. His father came to this country intending to get a doctorate in history and then return to China. After the Communist revolution, however, he recognized that he needed a practical degree. He earned a master’s in library science and took a job at Oregon State University. “Despite everything my parents tried to do,” he says, “and through no fault of their own, they never fit into American life. Like my clients, they lacked the English fluency and networks of friends to help them assimilate.”

Growing up in the largely white college town of Corvallis, Ore., Ho was excruciatingly aware of being different. “I was ashamed of being Oriental, as we were called then,” he says, “and ashamed of my parents’ accents. More than anything, I wanted mainstream culture to accept me.”

An outstanding student, Ho earned an undergraduate degree in political science at Yale, a master’s in government from Harvard and his law degree from Stanford. 

“I didn’t intend to do social justice law,” he says. “I had worked as a congressional legislative aide, and my dream was to work as a staff person on a Capitol Hill committee. But after working at the East Palo Alto Community Law Project one summer, I realized there was plenty of substantive work to do on other fronts.”

Moving to the Bay Area with its large Asian community and ethnically diverse population ended Ho’s feelings of being an outsider. “I went through a politicization process in which I unlearned what I had learned as a kid. I didn’t stop feeling inadequate until I came here.”

After graduating from Stanford, Ho was uncertain of which area of social justice law to pursue. It happened that the Employment Law Center was offering a fellowship, and he applied. The LAS-ELC turned out to be the perfect match for Ho’s legal interests. 

“I feel like a kid in a sandbox working here,” he says. “We have a litigation budget with no federal strings attached and the freedom to take cases because of their importance for subordinated workers. Major cases like Rivera cost a lot to try.”

The work is all-consuming. In 2001, Ho won a Windcall Resident Fellowship, a one-month residency in Montana for burned-out activists. Asked if he identified with that description, he says with a laugh, “Litigation can suck the life out of you and make you a stranger to your family and friends.” Ho’s wife, Kirsten Irgens-Moller, the executive director of Global Exchange, travels frequently, and his children, Andrew, 18, and Nicole, 16, are at an age when they have their own interests. So how does Ho relax? “I try to run regularly, but I don’t have much of a life outside work,” he says.