A Florida federal court recently denied a motion to dismiss filed by The Proctor & Gamble Company (“P&G”) and allowed a proposed class action complaint for alienage discrimination in employment to proceed. Rodriguez v. The Proctor & Gamble Company, Case Number 1:17-cv-2265 (S.D. Fla. March 30, 2018). The action was filed under 42 U.S.C. § 1981 by a Venezuelan national residing in Miami, who is authorized to work under the Deferred Action for Childhood Arrivals (“DACA”). When his employment application was denied, he was told by the P&G recruiter that he was not eligible to be hired because “per P&G policy, applicants in the U.S. should be legally authorized to work with no restraints on the type, duration, or location of employment.” Plaintiff also learned that some P&G job postings stated that “candidates must be a U.S. citizen or national, refugee, asylee or lawful permanent resident.”

Section 1981 provides in relevant part: “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 enjoyed by white citizens…” 42 U.S.C. § 1981(a). This includes discrimination in the making and enforcing of employment contracts. P&G conceded that Plaintiff was a member of a protected class (alien) and the alleged discrimination concerned one of § 1981’s enumerated activities (employment). P&G moved to dismiss the complaint arguing that Plaintiff had alleged a claim based on his temporary immigration status which is not protected – rather than his alienage – and that the policy challenged did not affect all immigrant applicants, only those with temporary status.

Citing 11th Circuit precedent, the court noted that discrimination in employment based on alienage is prohibited by § 1981. The court also relied on a New York federal court decision involving a DACA recipient who was denied employment based on Northwestern Mutual’s policy to only hire U.S. citizens and green card holders. The New York court had concluded: “allegations that [plaintiff’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.”

In denying the motion to dismiss, the Florida federal court pointed out that P&G’s policy could be construed to affect a subset of legal aliens, a protected class, and that Plaintiff was not required to allege discrimination against the whole class under § 1981. The suit now proceeds seeking damages, back pay, declaratory judgment, and injunctive relief.