Could it really be that an employer is obligated to hire any person in the United States who has employment authorization, even if it is short-term and temporary in nature?  That may very well be the case if a finding in the U.S. District Court of the Southern District Court of New York is sustained.

It has long been assumed that an employer could have a policy not to hire individuals who currently or in the future would require “sponsorship” by the employer in order to obtain work authorization.  There has been an ongoing dialogue with the “Office of Special Counsel for Immigration-Related Unfair Employment Practices” at the Department of Justice, as to what are appropriate questions that can be included when pre-screening potential hires.

In a letter dated September 10, 2012, Seema Nanda, Deputy Special Counsel at the OSC specifically addressed whether those receiving “deferred action” and employment authorization pursuant to President Obama’s announcement on DACA and indicated that a DACA applicant is not a “protected individual” pursuant to 8 U.S.C. § 1324b(a)(1)(B) and, therefore not protected from citizenship status discrimination under the anti-discrimination provision.  Accordingly, a company can, as a matter of policy choose not to hire that individual.

It was understood and believed to be settled law that this was equally applicable to others who are not in the protected class, which has historically been limited to “citizens, certain resident aliens, refugees and asylees.”

In a stunning new development, Judge Katherine Forrest of the U.S. District Court of the Southern District of New York found refusing to hire DACA aliens with employment authorization would constitute alienage discrimination pursuant to Section 42 U.S.C. 1981!  It would appear that her reasoning and rationale would extend to all potential hires that have a temporary employment authorization document.

In the case of Juarez v. Northwestern Mutual Life Insurance Co., the plaintiff, a Mexican national and beneficiary of the DACA program, alleged the insurance company’s policy of only hiring U.S. citizens and permanent residents was discriminatory under section 42 U.S.C. § 1981, which prohibits discrimination on the basis of race or alienage (citizenship) in making and enforcing contracts, including employment contracts.   The defendant motioned to dismiss the claim arguing that Juarez did not have a claim under section 1981 because the company had not discriminated on the basis of citizenship.  Northwestern argued Juarez was not hired because he did not possess a greencard.

District Court Judge Katherine Forrest disagreed with Northwestern and determined that the protected class of individuals includes those who are lawfully admitted to reside and work in the U.S., and that seemingly the only distinction the Court would support is between aliens lawfully admitted to the U.S. and those illegally in the U.S.  The Judge also determined that Northwestern’s policy was prima fasie discriminatory and used the Equal Protection clause to further support her reasoning.

This has far reaching implications for employers and foreign nationals.  It protects a much broader class of foreign nationals and appears to prohibit an employer from choosing not to hire an alien who is not in the U.S. on a permanent basis.  This overlooks several legitimate concerns an employer may have such as additional immigration costs for legal and filing fees, possibility of shortened employment due to an application denial, and the desire to avoid export control issues sometimes associated with sharing technological information with foreign  nationals, just to name a few.   This rational seems to imply that every DACA beneficiary; aliens with long pending green card cases taking advantage of “portability” provisions to move to new employers; those conferred Temporary Protected Status (TPS); etc. are all equally protected.  It also questions the long permitted pre-hiring and screening procedures that the OSC has been addressing over the course of several years.

There are many who feel, and feel strongly that it is commendable to encourage individuals residing in the United States without status to obtain work authorization and enter the workforce.  Many employers would be willing to hire them and deal with the uncertainties associated with their status.  However, we must ask whether or not it should be the employer’s choice.