Zoom Video Communications, Inc., has been sued for alleged hiring discrimination against a DACA recipient.

According to the lawsuit filed by Royer Ramirez Ruiz, Zoom or a recruiter for Zoom made improper pre-employment inquiries and ultimately rejected him for employment “due to immigration,” even though he was authorized to work in the United States under the Deferred Action for Childhood Arrivals program.

Under DACA, protection from deportation and work authorization are available for qualifying individuals, typically those who came to the United States illegally as children and stayed here.

The lawsuit, filed in federal court in Seattle, is being brought under the Washington (State) Law Against Discrimination and 42 U.S.C. Section 1981, alleging discrimination based on alienage. (Because it predates DACA, the Immigration Reform and Control Act of 1986 does not provide a remedy for DACA recipients who are denied employment because of their citizenship status.)

The mere filing of a lawsuit does not mean that Zoom has done anything wrong. Zoom has not even had an opportunity to respond. However, the allegations in the lawsuit serve as a useful reminder how not to handle immigration status in the hiring process.

Allegations

According to the lawsuit, Mr. Ramirez Ruiz was born in Mexico in 1995. He was brought to the United States in 2001 by his parents and has remained in the United States since then. In 2012, when DACA was first established by President Obama’s Executive Order, Mr. Ramirez Ruiz applied. He was granted DACA status that same year and has been authorized to work in the United States since his initial approval.

After obtaining a bachelor’s degree in applied mathematics and a minor in physics, Mr. Ramirez Ruiz worked as a software developer and data engineer. In July 2021, a “Technical Sourcer” contacted him to discuss an open engineering position at Zoom. According to the allegations in the lawsuit, Mr. Ramirez Ruiz was asked whether he required sponsorship, and he replied that he did not. During a subsequent job interview with a recruiter, Mr. Ramirez Ruiz confirmed that he was legally authorized to work in the United States.

Mr. Ramirez Ruiz alleges that he participated in a video call with another recruiter on or about July 26, and that the recruiter indicated he was an ideal candidate. However, he alleges that as the call was ending, the recruiter again asked about his need for sponsorship. Mr. Ramirez Ruiz again confirmed that he did not require sponsorship. According to the lawsuit, instead of dropping the matter, the recruiter asked Mr. Ramirez Ruiz whether he was a citizen of the United States. When he answered no, the recruiter allegedly asked whether he was a permanent resident.

The lawsuit contends that the recruiter continued to pressure Mr. Ramirez Ruiz to disclose the program that granted him work authorization. According to the lawsuit, “Plaintiff tried to dodge the question multiple times, not wanting to share his specific immigration status and knowing that at this point in the hiring process he was not required to share anything other than that he was legally authorized to work in the U.S.” However, he finally disclosed that he was a DACA recipient.

The recruiter allegedly responded, “ooh, that might be an issue.” He allegedly told Mr. Ramirez Ruiz that he would check out the issue internally before sending Mr. Ramirez Ruiz’s resume to a hiring manager.

Two days later, he alleges, he received an email from the recruiter saying, “[It] does not look like we can move forward due to immigration.”

Mr. Ramirez Ruiz sought a further explanation from the recruiter because his DACA status had never been an issue in other employment, but he did not receive a response.

(It is important to note that the lawsuit does not specifically allege that the recruiters were Zoom employees, as opposed to employees of a third-party recruiter doing work for Zoom, or employees of a third-party recruiter making “cold referrals” to Zoom. If they were employees of a recruiting company, the lawsuit does not allege any specifics about the recruiting entity’s business relationship with Zoom. Nor does it allege that Zoom even knew about, much less authorized, the alleged questions about immigration status.)

Cautionary tale for employers

Whether the lawsuit is ultimately found to have merit or not, the allegations provide helpful guidance to employers as to how not to handle a candidate’s immigration status during the hiring process.

Although the IRCA allows employers to ask whether an applicant is legally authorized to work in the United States and whether sponsorship is required, the recruiters in this case allegedly went far beyond that. They asked whether Mr. Ramirez Ruiz was a U.S. citizen, asked whether he was a permanent resident, and asked about the program under which he was authorized to work. Then, when he disclosed under pressure that he was a DACA recipient, he was told, “ooh, that might be an issue” and was ultimately denied employment because of his immigration status.

There is another problem, assuming the allegations in this lawsuit are true. Under the IRCA, an employer may not question an employee’s documents or responses if they meet I-9 requirements.

According to Mr. Ramirez Ruiz, he said that he was legally authorized to work in the United States and did not require sponsorship. If that is true, and assuming he really was the most qualified candidate for the position, he should have been hired and should have been allowed to choose the documents to submit to prove his identity and employment authorization in accordance with the IRCA. His Employment Authorization Document would have proven both.

Constangy’s Immigration Practice Group is available to provide training to your recruiters and hiring staff, and can also provide preventive advice and representation in the event of a legal challenge to your hiring practices.