Why it matters

An employer must face an alienage discrimination class action filed by a Deferred Action for Childhood Arrivals (DACA) plaintiff, according to a new Florida federal court decision. Authorized to work in late 2012 under the DACA initiative, David Rodriguez was rejected for hire pursuant to a Procter & Gamble (P&G) policy that U.S. applicants must be “legally authorized to work with no restraints on the type, duration, or location of employment.” The Venezuelan national then filed a putative class action asserting alienage discrimination under Section 1981. P&G moved to dismiss, arguing that its decision was based not on alienage but instead on temporary immigration status. The court disagreed. The complaint sufficiently stated a claim by pointing to a policy that expressly classified people on the basis of a protected characteristic, the court said, as the plaintiff alleged P&G had a facially discriminatory employment policy against a class of lawfully present work-authorized DACA recipients.

Detailed discussion

In December 2012, Venezuelan national David Rodriguez obtained an Employment Authorization Document pursuant to the Deferred Action for Childhood Arrivals (DACA) initiative. In September 2013, Rodriguez submitted his resume to a recruiter for Procter & Gamble (P&G), who was looking for college students to obtain internships with the company.

Rodriguez also filled out an application through the company’s website that included a prescreening questionnaire. He was asked four questions related to his immigration status: “1) Are you currently a U.S. citizen or national, or an alien lawfully admitted for permanent residency, or a refugee, or an individual granted asylum, or admitted for residence as an applicant under the 1986 immigration amnesty law? 2) Are you an individual admitted exclusively on a nonimmigrant visa, such as B, H, O, E, TN or L or an individual on the F-1 visa completed CPR or OPT? 3) Are you an individual who is now completing the permanent residency process but has not yet been granted permanent residency? 4) Will you now, or in the future, require sponsorship for U.S. employment visa status (e.g., H-1B or permanent residency status)?”

He answered “no” to each question. A few days later, Rodriguez received a rejection letter from P&G. The recruiter told him he was not eligible for hire because “per P&G policy, applicants in the U.S. should be legally authorized to work with no restraints on the type, duration, or location of employment.”

Rodriguez then filed a putative class action asserting alienage discrimination in violation of Section 1981 in Florida federal court. P&G moved to dismiss, arguing that the plaintiff failed to sufficiently plead that the employer’s decision was based on his noncitizen status.

To state a claim under Section 1981, a plaintiff must allege that he or she is a member of a protected class, the defendant intentionally discriminated against him or her on the basis of membership in that protected class, and the discrimination concerned one of Section 1981’s enumerated activities (such as the making and enforcement of an employment contract).

As P&G read the complaint, the plaintiff alleged only that the employer discriminated against individuals with temporary immigration statuses, a claim that is not cognizable under the statute.

“The Court disagrees,” U.S. District Judge Kathleen M. Williams wrote. “Plaintiff alleges in the complaint that P&G discriminated against him based on his status as a non-citizen.”

Relying on Juarez v. Northwestern Mutual Life Insurance Co., a 2014 decision from the Southern District of New York, the court said that 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.

In that case, the DACA recipient plaintiff claimed Northwestern Mutual had a policy of hiring only U.S. citizens and green card holders. The court determined that the employer impermissibly discriminated against a subclass of lawfully present aliens because Section 1981’s protection against discrimination extends to all lawfully present aliens; a plaintiff need not allege discrimination against all members of a protected class to state a claim under Section 1981; and 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.

“Here, P&G’s policy, as alleged in the complaint, could be construed to discriminate against a subset of legal aliens, which are a protected class under section 1981,” the court said. “And it is well established that plaintiff need not allege discrimination against the whole class to establish a section 1981 claim. Despite P&G’s argument that at most, [it] discriminated based on immigration status, at the pleadings stage, the Court may only rely on the allegations stated in the Complaint, which in this case assert a ‘facially discriminatory employment policy,’ against a subclass of lawfully present aliens.”

Even if the employer had lawful business reasons to reject applications from DACA recipients, those reasons could not be properly determined on a motion to dismiss, the court added, denying P&G’s motion to dismiss.

To read the order in Rodriguez v. The Procter & Gamble Company, click here.