In what appears to be the first case of its kind, a judge in New York has let a class alienage discrimination claim proceed against Northwestern Mutual Life Insurance Company. The lawsuit challenges Northwestern Mutual’s alleged policy of hiring only U.S. citizens and lawful permanent residents (LPRs). Juarez v. Northwestern Mut. Life Ins. Co., 2014 U.S. Dist. LEXIS 160726 (S.D.N.Y. Nov. 14, 2014).
According to the complaint, Ruben Juarez is a Mexican national who lives in New York City. His immigration status is that he can remain in the U.S. under the Deferred Action for Childhood Arrivals (DACA) program, which was granted to him in October 2012. His DACA status means can remain in the U.S. for two years and obtain an employment authorization document (EAD), a Social Security number, and a federal work permit. Juarez’s DACA status was renewed for another two years in October 2014.
When Juarez obtained DACA status, an EAD and a Social Security number, he applied to work as an intern at Northwestern Mutual when the company was recruiting college students. During an interview, Juarez provided his valid Social Security number. He was asked if he was a U.S. citizen or an LPR. Juarez said no, but explained that with DACA status and an EAD he was permitted to work in the U.S. An HR representative of Northwestern Mutual told him that, regardless of his DACA status, he could not work for the company because “you have to be a US citizen or have a green card.”
The lawsuit followed, as a class action, alleging that the company’s policy is discriminatory on its face and violates Civil Rights Act of 1866 (known as “Section 1981), which provides that all individuals are permitted to make and enforce contracts in the same manner as white citizens.
Ruling on the company’s motion to dismiss, Judge Forrest of the Southern District of New York held that Juarez’s case could proceed, since Section 1981’s protection against job discrimination “extends to all lawfully present aliens,” not just green-card holders, and that Juarez’s allegation that Northwestern Mutual operates under a policy that is discriminatory on its face sufficiently pleads the intentional discrimination required by Section 1981.
The court rejected the company’s argument that because Northwestern Mutual hires LPR’s it couldn’t have refused to hire Juarez because of his lack of U.S. citizenship. Relying on Second Circuit precedent the court noted that a plaintiff need not plead discrimination against all members of a protected class in order to state a viable claim under Section 1981.
Coming just a few days before President Obama’s Executive Order on Immigration, which was signed on November 20, it seems likely that in the coming months employers will see a rise in challenges to hiring restrictions that could negatively affect those individuals who are legally eligible to work in the U.S., but not under more “traditional” rules. Human Resources personnel should be trained to recognize the variety of ways in which individuals who are not U.S. citizens may be legally employed.