Meta Case Tests Limits on Citizenship Bias Claims at Ninth Cir.

Federal appeals court judges Wednesday probed whether federal civil rights law covered claims of citizenship discrimination and racial bias in a case alleging hiring practices by Facebook parent Meta Platforms Inc. favor foreign workers.

A three-judge panel at the US Court of Appeals for the Ninth Circuit heard arguments in a case testing the limits of Section 1981 of the 1866 Civil Rights Act.

The plaintiff, Purushothaman Rajaram, sued Meta Platforms Inc. in the Northern District of California last year alleging that the company discriminated against US citizens in favor of H-1B visa holders.

The case was dismissed for lack of standing when a magistrate judge sided with Meta’s argument that Rajaram lacked standing because such reverse discrimination claims weren’t covered by the statute. The company, one of the largest users of H-1B visas, has said there’s no factual basis to the discrimination claims.

New Rights

Judge Eric D. Miller, a Donald Trump appointee, said there appeared to be a fairly straightforward textual argument for reading the civil rights law to cover all persons, including citizens.

“For you to prevail you need us to follow something other than the plain textual reading don’t you?” Miller asked counsel for Meta.

But Lauren R. Goldman, counsel for the company and a partner at Gibson, Dunn & Crutcher LLP, said plaintiffs were asking the court to “find new rights in the statute that nobody else has before.”

The law addresses protections for two protected classes, she said—alien status and race, but not citizenship.

“If every statute had this reverse discrimination built in, then a statute that said pregnant people have to be treated the same as non-pregnant people would have to be read to protect non-pregnant people,” Goldman said. “A statute that says you couldn’t discriminate against old people means you couldn’t treat old people better than young people.”

The failure to mention US citizens in the civil rights law didn’t create a tacit exception, said Daniel Low, a partner at Kotchen & Low LLP and counsel for Rajaram.

If Congress intended to limit Section 1981 protections to citizens, he said, “it could have easily done so.” The civil rights statute should be read broadly, he said.

“Courts have repeatedly found the main purpose,” Low said, “is not what governs, it is the text of the statute.”

Judge Marsha Berzon, a Bill Clinton appointee, said the legislative history of the civil rights law and court decisions didn’t offer support for arguments that citizenship bias is covered.

“We have much more data on the race issue than we do on the citizenship issue,” she said.

Visa Program

The H-1B program allows companies to hire workers from abroad for up to two three-year terms if they can’t find adequate US workers to meet labor needs. Visa holders who apply for permanent residency with an employer sponsor can continue extending the status indefinitely.

The vast majority of 85,000 petitions for new H-1B workers each year are for positions in tech or computer-related occupations, according to data from US Citizenship and Immigration Services.

Meta’s hiring practices involving foreign workers previously came under scrutiny from the Trump administration, leading to a more than $14 million settlement with the Departments of Justice and Labor in 2021. The company maintained that it had done no wrongdoing as part of the settlement agreement.

The case is Rajaram v. Meta Platforms, Inc., 9th Cir., No. 22-16870, oral arguments 10/4/23.