On June 10, 2020, the United States District Court for the Southern District of Florida denied a major multinational manufacturing corporation’s (“corporation” or “defendant”) motion for summary judgment to dismiss a case challenging its immigration hiring policy. In doing so, the court affirmed that all work-authorized immigrants are protected by 42 U.S.C. 1981’s prohibition on alienage discrimination. The court found that employment application questions which seek to exclude certain “subcategories” of work-authorized foreign nationals, such as Deferred Action for Childhood Arrivals (DACA) recipients or holders of certain visa types, may be unlawful.

In 2014, defendant denied plaintiff/applicant’s bid for an internship with their company based on a policy to automatically reject, at the first step of the application process, all non-U.S. citizen applicants, unless they are permanent residents, asylees, or refugees. Specifically, the internship application requested the following information:

1. Are you currently a U.S. citizen OR national, OR an alien lawfully admitted for permanent residence, OR a refugee, OR an individual granted asylum, OR admitted for residence as an applicant under the 1986 immigration law?
2. Are you an individual who is now completing the permanent residency process but has not yet been granted permanent residency?
3. Will you now, or in the future, require sponsorship for U.S. employment visa status (e.g. H1B or permanent residency status)?

Applicants who answered “no” to the first question, or “yes” to the second or third, were automatically rejected. At the time of filing, applicant was lawfully present in the United States under DACA, and had separate employment authorization with an employment authorization document (EAD) as is required to qualify for the program. However, his application was automatically denied because he was neither citizen, green card holder, asylee, nor refugee (question 1).

The court held that by asking whether an applicant was a U.S. citizen and broadly denying all non-citizen applicants that did not fall into its narrowly prescribed exceptions, the corporation facially discriminated against non-citizens and subjected them to less favorable treatment. Corporation argued that these questions sort applicants by “immigration status” rather than alienage, as the company hired green card holders, asylees, and refugees under the same policy.¹ The court rejected this distinction, as the Supreme Court has made clear that a policy can be discriminatory against a protected class (in this case, non-citizens), even if not all members of that class are subject to adverse treatment. The court likewise rejected corporation’s rationale that recruiting interns unable to work in the United States long-term, or who are subject to immediate deportation, is incompatible with the goal of grooming interns for long-term employment with the company.² The court also found that refusal to hire beneficiaries of DACA, who are required to maintain work authorization, unlawfully undermines the program’s intent. Finally, the court rejected corporation’s defenses under the equal protection act and the “same decision” doctrine.

Corporation raised the issue that the anti-discrimination provisions of the Immigration and Nationality Act (INA) specifically protect permanent residents, refugees, and asylees from “immigration status’ discrimination. While the court did not reach this issue in its decision, it did note that this provision (the Immigration Reform and Control Act of 1986) also expressly excludes certain subclasses of immigrants from protection, but that DACA recipients are not among those excluded. Corporation also cites the 2016 Department of Justice Office of Special Counsel letter that suggests employers may filter applicants based on whether they will require visa sponsorship. The court held that its decision is compatible with the OSC letter, on the basis that the letter only addresses whether the employer is required to incur the financial expenses of sponsorship, not whether they may specifically use green card, asylee, or refugee status as a filtering mechanism. Ultimately, as provided in the OSC guidance, employers must avoid asking detailed questions about immigration or citizenship status, to avoid confusion which may deter other applicants and act as a de facto candidate filter.

Additional Department of Justice guidance on the INA advises employers to treat citizens, non-citizen nationals, asylees, green card holders, and refugees consistently in recruitment or hiring, “without regard to their citizenship status.” Following the decision in the instant case, employers must extend their scrutiny of hiring policies beyond “citizenship” and avoid language which targets specific non-immigrant visa types, or work authorization statuses through programs such as DACA. The Department of Justice advises employers to avoid job postings that including limiting language such as “only U.S. citizens,” “H-1Bs only,” “H-1Bs and OPT preferred,” and “only U.S. citizens or Green Card Holders.” Employers must also be advised that the above guidance likewise applies to I-9 compliance. The Department of Justice also advises against requiring certain documents which exclude applicants based on their citizenship or visa classification, such as “must present U.S. Birth Certificate.”

This article was written by Javier A. Trejo.

_{1 “Alienage” refers to a lack of United States citizenship.}

_{2 The Supreme Court has long held that “whether an employer practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.” [emphasis added]. United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991).}