The U.S. Court of Appeals for the Fourth Circuit recently ruled against a student who sued ExxonMobil for discrimination when the company rescinded an internship offer. The case is Aldo De Leon Resendiz v. Exxon Mobil Corporation, No. 21-2211 (4th Cir. 2023).
Aldo De Leon entered the United States illegally when he was 8 years old. He received deferred deportation and eligibility for temporary work authorization under the Deferred Action for Childhood Arrival program, or DACA for short. De Leon excelled as an engineering student at North Carolina State University, and ExxonMobil recruited him for an internship. De Leon told ExxonMobil he was not a U.S. citizen, but he erroneously represented that he had permanent work authorization. DACA does not provide recipients with legal immigration status. It defers enforcement action and allows temporary work authorization.
ExxonMobil offered De Leon an internship consistent with its policy of hiring citizens and non-citizens provided they had permanent work authorization. When De Leon submitted his paperwork, it showed he lacked permanent work authorization and ExxonMobil rescinded its internship offer. De Leon sued under 42 U.S.C. § 1981, claiming ExxonMobil’s policy discriminated against aliens.
Section 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” § 1981(a). The Court noted “we now read the statute to prohibit the refusal to enter a contract with someone based on a protected reason.” To enforce the statute, the U.S. Supreme Court created an implied private right of action for race-based discrimination under Section 1981. Further, the U.S. Court of Appeals for the Fourth Circuit explicitly extended the protections of Section 1981 to include a private right of action for alienage-based discrimination. But Section 1981 only applies to intentional discrimination. In other words, a facially neutral policy with a discriminatory impact may not violate Section 1981.
De Leon did not plead intentional discrimination against aliens. In fact, De Leon alleged that ExxonMobil offered him an internship despite knowing he was an alien. It was obvious, then, that ExxonMobil’s policy requiring its workers to have permanent work authorization did not screen out all aliens. Work authorization, not alienage, was the determinative factor under the policy. The Court said that even if ExxonMobil’s policy adversely affects only aliens, that impact alone is insufficient to create a claim for intentional discrimination under Section 1981.
The Court noted that De Leon may want to address his complaint to Congress, because the federal government decides what aliens are eligible for long-term employment. The Court wrote, “If Congress changed the law tomorrow to make all aliens eligible for long-term employment, then without changing a single word in the challenged policy, all aliens would be eligible for employment at ExxonMobil. So it cannot be that ExxonMobil’s policy, standing alone, creates a reasonable inference of intentional discrimination against aliens. Rather than grant permanent work authorization to all aliens, the federal government limits the categories of aliens eligible for long-term employment.”