Job Applicant Successfully Alleges Alienage Discrimination Based on Policy Targeting Legal Aliens Without Green Cards

In Juarez v. Northwestern Mutual Life Insurance Co., the Southern District of New York held that plaintiff stated a claim under 42 U.S.C. 1981 for discrimination against aliens without green cards.

Section 1981 prohibits both public and private actors from discriminating on the basis of race or alienage in the making and enforcement of contracts, including employment contracts.

The plaintiff in Juarez – a Mexican national who obtained Deferred Action for Childhood Arrivals (DACA) status – submitted a resume to defendant Northwestern Mutual. Defendant rejected plaintiff, on the ground that applicants must be a U.S. citizen or have a green card.

Following his rejection, plaintiff filed a putative class action alleging alienage discrimination in violation of 42 U.S.C. § 1981. He alleged that defendant “advertises its blanket ban against hiring anyone who is not a U.S. citizen or U.S. permanent resident on its website.”

In particular, the specific policy alleged in the complaint is:

Financial representatives must have at least three years of continuous U.S. residency, hold a permanent resident visa and read, write and speak English fluently. A financial representative intern must hold a current student or resident visa, have three years continuous residency or anticipated three years of continuous residency completed upon college graduation, and read, write and speak English fluently.

In denying defendant’s motion to dismiss and holding that plaintiff sufficiently alleged a section 1981 violation, the court reasoned:

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. Juarez’s allegations that he was denied employment pursuant [to] this policy are sufficient to state a claim under § 1981. This conclusion follows directly from three premises, each of which is well supported in the law: (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. …

The protection of § 1981, like that of the Fourteenth Amendment, extends to all lawfully present aliens, whether or not they have a green card. … [D]efendant does not dispute that all lawfully present aliens, including those who do not hold green cards, are protected under § 1981. …

[W]hile defendant is correct that § 1981 reaches only purposeful discrimination, a plaintiff who alleges a policy that is discriminatory on its face is not required to make any further allegations of discriminatory intent or animus. … One of the ways to plead intentional discrimination is to point to a law or policy that expressly classifies people on the basis of a protected characteristic. … It follows that allegations that Juarez’s application was rejected pursuant to a policy that expressly denies employment to lawfully present aliens without green cards-a protected subclass-suffice to state a claim under § 1981.

The court flatly rejected defendant’s argument that its “willingness to hire some lawfully present aliens renders implausible any allegation of intentional discrimination on the basis of alienage”, reasoning that “one of the ways to engage in purposeful discrimination is to apply a policy that is discriminatory on its face” and that “[f]acial discrimination is discrimination ‘because of’ a protected characteristic.” (Emphasis in original.)

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