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Work-authorized DACA recipient denied job successfully pleads bias against subclass of legal aliens

By Joy P. Waltemath, J.D.

Work-authorized in late 2012 under the U.S. government’s Deferred Action for Childhood Arrivals (DACA) initiative and rejected for hire per Procter & Gamble (P&G) policy that applicants in the U.S. should be “legally authorized to work with no restraints on the type, duration, or location of employment,” a Venezuelan national successfully stated a claim for alienage discrimination under Section 1981, a federal district court in Florida ruled. Refusing to dismiss the complaint filed on behalf of the applicant and others similarly situated, the court disagreed with P&G’s argument that its decision to not hire him was based on his temporary immigration status and not alienage. Instead, the allegations of the complaint were sufficient to plead alienage discrimination because they claimed that P&G refused to hire him, and others similarly situated, because of their non-citizen status as a subclass of aliens legally present and work-authorized (Rodriguez v. The Procter & Gamble Co., March 30, 2018, Williams, K.).

Refusal to hire work-authorized DACA recipient. The only disputed issue was whether the applicant had stated a claim for alienage discrimination by sufficiently pleading that P&G refused to hire him in 2013, as well as others similarly situated, because of their non-citizen status. Refusing to dismiss, the court determined that the complaint was sufficient. Section 1981 provides that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts… as is enjoyed by white citizens… ” (42 U.S.C. § 1981(a)). This prohibits discrimination based on race or alienage in the making and enforcement of contracts, including employment contracts, said the court.

Immigration status vs. citizenship status. P&G contended that the applicant admitted in his complaint that P&G’s decision not to hire him was based on his immigration status and not his citizenship, and consequently his claim would fail. The employer based this on the fact that the complaint alleged that both citizens and noncitizens were invited to apply for contracts with P&G, so “at best, then, the Complaint alleges that [P&G] discriminated against individuals with temporary immigration statuses,” which is not cognizable under Section 1981.

Discrimination? But the court did not agree. The applicant alleged that P&G discriminated against him based on his status as a non-citizen by stating supporting facts that a P&G recruiter told him that P&G only hires applicants that are “legally authorized to work with no restraints on the type, duration, or location of employment,” and that in some of its job postings, P&G states that “all candidates must be a U.S. citizen or national, refugee, asylee or lawful permanent resident.” To that end, had the applicant properly pleaded “purposeful discrimination” as required by section 1981?

“Subclass of lawfully present aliens.” Citing Juarez v. Northwestern Mutual Life Insurance Co., Inc., a 2014 case out of the Southern District of New York with “strikingly similar facts,” the court considered another case in which the plaintiff was a DACA recipient who was denied employment based on Northwestern Mutual’s policy to only hire U.S. citizens and green card holders. That court found the policy impermissibly discriminated against a subclass of lawfully present aliens because Sec. 1981’s protection against discrimination extends to all lawfully present aliens, (2) a plaintiff need not allege discrimination against all members of a protected class to state a claim under Section 1981 (e.g., discrimination against only a subclass); and (3) a plaintiff can plead intentional discrimination by alleging that the defendant acted pursuant to a facially discriminatory policy requiring adverse treatment based on a protected trait.

Work-authorized DACA recipients were subclass of legal aliens. As in Juarez, one way to plead intentional discrimination ”is to point to a law or policy that expressly classifies people on the basis of a protected characteristic,” said the court, approvingly parroting Juarez’ language that “allegations that [plaintiff's] application was rejected pursuant to a policy that expressly denies employment to lawfully present aliens without green cards—a protected subclass—suffice to state a claim under Sec. 1981.” Here, P&G’s policy, as alleged in the complaint, could be construed to discriminate against a subset of legal aliens, who are a protected class under Sec. 1981. Despite P&G’s argument that at most, P&G discriminated based on immigration status, at the pleadings stage, the court relied on the complaint’s allegations that asserted a “facially discriminatory employment policy” against a subclass of lawfully present aliens—work-authorized DACA recipients.