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‘Dreamers’ Denied Jobs Explore Reach of Hiring Bias Protections

July 13, 2020, 9:05 AM

David Rodriguez fled political violence in Venezuela at the age of 14, eventually becoming a “dreamer” allowed to stay and work in the U.S. He’s now at the center of a legal dispute with Procter & Gamble Co. that could test the boundaries of immigration-status discrimination in hiring.

Despite having a two-year work authorization under the Deferred Action for Childhood Arrivals program, Rodriguez said he was unlawfully denied a finance and accounting internship at P&G. The company at the time had a policy that required U.S. job applicants to be “legally authorized to work with no restraints on the type, duration, or location of employment.”

He accused P&G of “alienage” discrimination under a post-Civil War law, adding to at least six other lawsuits against employers like Hewlett Packard Enterprise, Bank of America, and Silicon Valley software developer VMware, whose hiring policies allegedly discriminate against DACA recipients.

Rodriguez’s case—which P&G wants to appeal to the U.S. Court of Appeals for the Eleventh Circuit after a judge slated it for trial—may become the first to explore whether alienage discrimination under Section 1981 of the 1866 Civil Rights Act also encompasses bias based on immigration status.

The reason there’s so much confusion in court is because “there’s a conflating of status and the right to work,” said Leticia Saucedo, professor of law at U.C. Davis School of Law. “These are all highly contested issues, still.”

P&G argues that Section 1981 prohibits alienage or citizenship discrimination, not bias based on work authorization or immigration status, according to court documents.

But immigration advocates say recent U.S. Supreme court rulings, including one that extended federal civil rights protections to LGBTQ workers, could bolster arguments that immigrant-status discrimination falls within the scope of alienage bias.

Jobs Denied on Immigration Status

In their lawsuits, DACA recipients argue that employer policies that reject applications from non-U.S. citizens who aren’t lawful permanent residents, or have long-term employment, authorization violate protections granted under Section 1981.

But employers facing these charges contend that their hiring policies comply with federal immigration law.

“Companies are relying on policies that go back decades,” said Thomas Saenz, president and general counsel at the Mexican American Legal Defense and Education Fund, which represents the plaintiffs in these cases. Human resources employees, in many cases, have “a basic misunderstanding of DACA and the work authorization that comes with it,” he said.

A spokesperson for P&G previously told Bloomberg Law the company is “confident that none of P&G’s hiring practices exclude any qualified candidate on the basis of any protected characteristic.”

“We continually evaluate our application process to allow for greater flexibility in the candidates we consider,” the spokesperson said. “The Company has, and will continue to, consider individuals authorized to work under DACA for employment opportunities at P&G.”

The first lawsuit to claim DACA discrimination in hiring was filed by Ruben Juarez, who at that time was a Mexican national living in New York. Juarez eventually settled with Northwestern Mutual, as have three other DACA recipients who have sued over the past six years. According to Saenz, in those cases the company demonstrated that it’s hiring decision was “a one-off mistake.”

“We’ve been open to companies proving to us that it won’t happen again,” Saenz said. “It’s often a lack of adequate training for people in the decision-making position.”

Consequently, courts have yet to take-up the merits of whether immigration status should count as a subset of alienage under Section 1981. But two recent U.S. Supreme Court decisions could persuade judges to find that it does, according to some attorneys.

Last month the high court preserved the DACA program after the Trump administration attempted to end it permanently, meaning nearly 700,000 DACA recipients will continue to stay and work in the U.S.

And on the question of discrimination, the Supreme Court’s decision that LGBTQ bias is a type of sex discrimination under a federal workplace law could bolster similar arguments that alienage covers immigration status, attorneys said.

In Rodriguez’s case, the judge found that while courts “have had no occasion” to consider whether Section 1981’s protections extend to non-citizens who have legal work authorization but who were not “lawfully admitted,” the text and legislative history of Section 1981 “confirm that the statute’s protection against employer alienage discrimination applies to all work-authorized immigrants, and that Congress did not express a clear intent to exclude subclasses of immigrants from its protection.”

With that, U.S. District Judge Kathleen Mary Williams in Miami concluded that DACA recipients aren’t necessarily excluded from Section 1981’s protections.

Statutes at Play in Employer Compliance

The law that traditionally applies in these hiring scenarios is the Immigration Reform and Control Act of 1986, which established protocols for employers to verify employment eligibility and ensure they weren’t hiring undocumented individuals.

“But IRCA also has protections in place for candidates so that employers don’t go too far in their evidence requirements,” said Amy Peck, a principal in the Omaha, Neb., office of management-side firm Jackson Lewis P.C.

One of the regulation’s provisions spells out who is in a protected class when it comes to hiring decisions and immigration status: U.S. citizens, permanent residents if they apply for citizenship within a certain time frame, and asylees and refugees, she said.

The Justice Department’s Immigrant and Employee Rights Section has issued a series of technical advisory letters since IRCA was implemented that have advised on the interpretation of this section in response to employer requests for clarity, Peck said. “The government has thoughtfully put up bowling alley bumpers around what you can do and not do to verify employment authorization.”

Under the statute, companies can say “this is not a position that we want to sponsor or potentially sponsor somebody for and are only considering the protected categories,” according to Peck. “That’s been acceptable for decades.”

Once DACA was created, the Obama administration said there were rights for people in the workplace, regardless of their immigration status, and the administration would be able to determine who is authorized for employment, Saucedo said. “And
that set up the argument that’s coming before the courts. Does immigration law trump employment law?”

IRCA hasn’t updated its protective groups to include DACA recipients, but “as to whether you can choose to not hire DACA people, that’s why this is in the courts,” Peck said. “It’s tragic that Congress can’t address this issue, it seems so simple that DACA should be made permanent. Until it is, there’s a lot of uncertainty. That’s not a problem that should fall on the employers.”

From a business standpoint, she added, employers need the certainty that the worker will be around for a long time, and that certainty comes from knowing that they’re authorized to work on a long-term basis.

But according to Saucedo of U.C. Davis, courts considering the issue will have to go “back to basics.”

The argument made by DACA recipients is that subsets of protected categories have always been included, so whether it’s the Supreme Court or Congress, there’s precedent to recognize a subcategory of a protected class, she said. “It’s almost like a slam dunk argument—as long as you’re authorized to work in the workplace, you should have all employee rights.”

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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