If You Thought the Issues Involving the Hiring of Undocumented Workers Were Resolved -- Dream On

Labor & Employment Newsletter

Client Alert

Author(s)

The status of individuals authorized to remain and work in the U.S. under the government’s Deferred Action for Childhood Arrivals (DACA) initiative remains uncertain. That uncertainty is felt by employers who hope to hire workers who they reasonably expect will be present and authorized to work for some time into the future.  

To address the concern, some businesses have adopted policies and pre-screening questionnaires that identify potential restrictions on an applicant’s authorization to work. Recently, such practices have been challenged and some courts are allowing the legal challenges to proceed to trial. In other words, don’t assume claims of discrimination based on your consideration of the applicant’s work authorization status will be dismissed preliminarily, without having to engage in discovery and proof of your intentions and legitimate business interests. So, can an employer take into account the temporary nature of the work authorization when making hiring decisions? 

THE LAW

Last month, a federal court in Florida allowed a claim by a Venezuelan immigrant with work authorization under DACA to sue an employer who declined to hire him. The applicant alleged his rejection was a violation of 42 U.S.C. 1981, the post-Civil War law that prohibits discrimination based on race or alienage in the making and enforcement of contracts, including employment contracts. This is the second such suit that has been allowed to proceed past a preliminary motion to dismiss in the last four years. In both cases, the plaintiff alleged illegal discrimination based on non-citizen status, while the employer argued that the decision not to hire was based on work authorization status, not citizenship. 

The Florida Court reviewed the following questions that the employer used on a pre-employment screening questionnaire:

  1. Are you currently a U.S. citizen or national, or an alien lawfully admitted for permanent residency, or a refugee, or an individual granted asylum, or admitted for residence as an applicant under the 1986 immigration amnesty law? 
  2. Are you an individual admitted exclusively on a nonimmigrant visa, such as B, H, O, E, TN or L or an individual on the F-1 visa completing CPT (Curricular Practical Training) or OPT (Optional Practical Training)? 
  3. Are you an individual who is now completing the permanent residency process but has not yet been granted permanent residency? 
  4. Will you now, or in the future, require sponsorship for U.S. employment visa status (e.g., H-1B or permanent residency status)?

The applicant answered “no” to each of these questions. He also informed the employer that he had a work permit and did not need sponsorship.  He was rejected and told that applicants’ work authorizations must present no restraints on the type, duration, or location of employment.

The applicant sued, and the employer moved to dismiss the claim asserting that the decision not to hire was based on immigration status and not citizenship. The court denied the employer’s motion to dismiss stating that the complaint alleged that the employer’s policy “expressly denies employment to lawfully present aliens without green cards – a protected subclass,” and that such policy “could be construed to discriminate against a subset of legal aliens, which are a protected class under section 1981.” That case will now proceed, and whether the employer can establish lawful business reasons for rejecting the applicant remains to be determined.

Earlier cases have analyzed the issue under the requirements of the Immigration and Nationality Act (INA), which prohibits discrimination based on citizenship and immigration status and applies to U.S. citizens, recent permanent residents, temporary residents, asylees and refugees. The U.S. Department of Justice has addressed questions relating to the DACA program and issued an opinion letter in 2012 that states that DACA beneficiaries do not fall within the INA’s definition of “protected individual” and, therefore, are not protected from discrimination based on citizenship. However, on the DOJ website under FAQs it warns that employers may not refuse to hire solely because the work authorization document will expire in the future. So, the guidance under the INA is unclear. 

But that’s not the end of the story. DACA beneficiaries are not prohibited from asserting Title VII national origin claims. Those cases involve analyzing work authorization status policies – such as the questionnaire above – as a possible pretext for unlawful national origin discrimination. 

Section 1981, however, prohibits discrimination based on race or alienage and, therefore, provides another avenue to attack policies that may disqualify a DACA beneficiary from employment. We can expect to see more section 1981 claims filed and for them to proceed to trial. As they are litigated, we will learn more about the risks associated with using such policies and questionnaires.  

TAKEAWAYS

  • Understand that while applicants may lack standing to challenge policies under some elements of the INA, they may be able to assert a claim for national origin discrimination.
  • Section 1981 prohibits discrimination based on race and alienage, and is being used as a basis to challenge employer hiring decisions.
  • If you use pre-employment screening questionnaires to identify the nature of work authorizations, you should keep abreast of the legal developments and have your attorney review them for compliance with the INA, Civil Rights legislation and other anti-discrimination laws.