In the past, employers were comfortable instituting policies that permitted them to refuse to hire Deferred Action for Childhood Arrivals (DACA) recipients with employment authorization. The policies were founded on the belief that since DACA recipients were not classified as “protected individuals” under the Immigration and Nationality Act (INA), employers had absolute discretion under the law in choosing not to hire them.
In 2014, a federal court in New York pronounced that refusing to hire DACA recipients with employment authorization could constitute “alienage discrimination” under the Civil Rights Act of 1866. The development has had far-reaching implications for employers. Employers are getting hit with a string of lawsuits over policies that allow them to deny employment opportunities to DACA recipients. The spike of alienage discrimination lawsuits by DACA recipients will certainly transform employers’ practices on hiring, firing, and recruitment or referral for a fee from here on out.
INA’s Antidiscrimination Provisions only Go So Far
The INA contains antidiscrimination provisions that prohibit employers from participating in national origin discrimination, citizenship status discrimination, unfair documentary practices (e.g., employers specifying the types of documentation employees may provide or refusing to accept valid documents), and retaliation against individuals who assert rights protected under the INA. National origin discrimination and citizenship status discrimination are distinct in nature.
National origin discrimination occurs when an employer treats an injured party unfavorably regarding hiring, firing, or recruitment or referral for a fee simply “because the injured party is from a particular country or part of the world,” “because of the injured party’s ethnicity or accent,” “because of limited English ability,” or “because the injured party appears to be of a certain ethnic background, even if he or she is not.” When an employer participates in any of those prohibited discriminatory acts but does so on the basis “of the injured party’s immigration status” or the fact that the injured party “is or is not, a U.S. citizen,” citizenship status discrimination occurs.
Under the INA, all work-authorized individuals may obtain relief for national origin discrimination. However, only individuals who are classified in one of five protected classes may obtain a remedy for being discriminated against on the basis of their citizenship status. The INA defines “protected individual” as (1) a citizen or national of the United States; (2) a permanent resident; (3) a lawful temporary resident; (4) a refugee; or (5) an asylee. Individuals with DACA status do not fit in any of the protected classes. Regrettably, the INA’s antidiscrimination provisions only go so far in protecting DACA recipients.
Employers’ Practices May Soon Become Outdated
DACA is a federal program created by President Barack Obama that authorizes “recipients to remain in the United States for two years and to obtain an Employment Authorization Document (EAD), a federal work permit, and a Social Security number.” Faced with citizenship status discrimination, DACA recipients were unable to file charges under the INA’s antidiscrimination provisions because they did not belong to a protected class. Employers found an opportunity to tailor their policies in a manner that would preserve their ability to deny DACA recipients employment opportunities without breaching the INA’s antidiscrimination provisions.
Everything changed in 2014, however, when a federal district court in New York found that refusing to hire DACA recipients with employment authorization could constitute “alienage discrimination” under the Civil Rights Act of 1866 as codified by 42 U.S.C § 1981. In its commentary, the court revealed that § 1981 prohibits race and alienage discrimination in making and enforcing contracts, including employment contracts. Lawyers representing DACA recipients began to use § 1981 to bring alienage discrimination lawsuits. The law was becoming the proper avenue to bring citizenship status discrimination claims. In every single one of the lawsuits, DACA recipients asserted that their employer’s policies constituted intentional discrimination based on alienage by rescinding or denying them employment contracts because they were not U.S. citizens, permanent residents, refugees, or asylees.
The new development in the law has begun to have far-reaching implications on not only foreign nationals but also employers. Employers’ practices may soon become outdated. A policy that reflects a prohibition on hiring DACA recipients may show intentional discrimination by the employer if it’s based on an employee’s or candidate’s alienage.
§ 1981 fills a gap that was left by the INA’s classification of protected classes. Although it may once have been the norm for employers to implement policies that allowed them to refuse to hire DACA recipients with employment authorization, that may no longer be the case. Employers that choose not to hire DACA recipients based on their policies should think carefully about updating them since failing to do so may invite alienage discrimination lawsuits.