On November 14, 2014, the District Court for the Southern District of New York came down squarely in on the side of the Plaintiff in Juarez v. The Northwestern Mutual Life Insurance Company, Inc. The Court denied summary judgment to the defense, in the process endorsing, echoing, and bolstering the plaintiffs’ arguments that the defendant had acted unlawfully when it refused to hire Ruben Juarez as an intern because, while he had documents authorizing him to work in the United States, he was not a U.S. Citizen and did not hold a green card.
According to the facts alleged in the complaint, Mr. Juarez, a Mexican national residing in New York, interviewed for a position at Northwestern Mutual on December 11, 2013. After the interview he was contacted again by his interviewer, Susan Lewandowski, who asked him whether he was a U.S. citizen or a green card holder. He explained that he had Deferred Action for Childhood Arrivals (DACA) status, which allowed him to remain in the United States for two years and to obtain an Employment Authorization Document (EAD). He further explained to Lewandowski that his research indicated that he could legally work for Northwestern Mutual without a green card or visa. Lewandowski replied “sorry but you have to have a green card.” In fact, on its company website Northwestern Mutual advertises its policy of requiring new interns hold a current student or resident visa.
Juarez alleges that Northwestern Mutual’s decision not to hire him based on its policy of requiring all new hires to have either citizenship or a green card amounts to alienage discrimination. Roughly, everyone who is legally present and authorized to work in the United States has equal right to seek employment. As the Court in this case states quite clearly: “The policy alleged in the Complaint–essentially, ‘Legal aliens without green cards need not apply’–on its face discriminates against a subclass of lawfully present aliens.”
42 U.S.C. §1981, passed as part of the Civil Rights Act of 1866, states: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.”
The Court does an impressive amount of work in explaining the application of this statute to the present case, by showing how three legally correct premises imply the validity of the Juarez’s claim. These premises are: (1) §1981’s protection against discrimination extends to all lawfully present aliens, whether or not they have a green card; (2) a plaintiff need not allege discrimination against all members of a protected class to state a claim under §1981; and (3) a plaintiff can plead intentional discrimination by alleging that the defendant acted pursuant to a facially discriminatory policy requiring adverse treatment based on a protected trait.” According to premise (1), Mr. Juarez’s rights are equal to those of aliens with green cards, and it is therefore discriminatory to treat him differently on the basis of his specific status as a non-citizen. According to premise (2), the company cannot justify dismissing his complaint by pointing, as they do, to examples of non-citizens who have not been excluded from employment. And according to premise (3), while it is true that, in order to show a violation of §1981, Juarez must show that the discrimination was intentional, the controlling legal doctrine here states that a plaintiff can show this by pointing to a facially discriminatory company policy like the one allegedly followed by Northwestern Mutual.
In the end the Court reaches a strong conclusion, and one that seems to place the plaintiff in good legal position going forward: the Second Circuit and the U.S. Supreme Court have agreed that it is unlawful to create “a subset of aliens, scaled by…how we perceive the aliens’ proximity to citizenship.” The only distinction that an employer can lawfully draw in making hiring decisions is between legal and non-legal aliens.
If you believe an employer has discriminated against you based on your status as a legal immigrant, please contact The Harman Firm, LLP.