DACA Recipient Cannot Establish Alienage Discrimination

Takeaway: In this case, the employer based its decision on the plaintiff’s lack of permanent work authorization.

​A summer intern applicant for ExxonMobil Corp. whose deportation was deferred under the Deferred Action for Childhood Arrivals (DACA) program could not pursue an alienage discrimination claim against the company for refusing him employment. The 4th U.S. Circuit Court of Appeals held that requiring permanent work authorization of employees does not show an intent to discriminate.

The plaintiff illegally entered the United States from Mexico when he was eight years old. Because he had arrived as a minor, he received deferred deportation and eligibility for temporary work authorization under the DACA program. However, deferred-action status under DACA did not grant him a lawful immigration status, but it allowed him to stay in the United States and apply for temporary work authorization.

The plaintiff remained in the United States and attended North Carolina State University where he excelled as an engineering student. ExxonMobil came to the university and gave a presentation to the Society of Hispanic Professional Engineers. After that presentation, the plaintiff applied for an internship at ExxonMobil. On his application, he accurately represented himself as a Mexican citizen who was authorized to work in the United States. But he erroneously represented that his work authorization was permanent.

ExxonMobil interviewed the plaintiff and offered him an internship at its Baton Rouge, La., facility. The offer was contingent upon satisfactory completion of the conditions of employment, which included having permanent authorization to work in the United States, supported by proper documentation.

The plaintiff accepted the offer, and ExxonMobil contacted him to remind him to provide documentation of his work authorization. The only documentation that he provided, however, showed that he had temporary—not permanent—work authorization. At the same time, the plaintiff was completing an application for a Transportation Worker Identification Credential card, which the U.S. Department of Homeland Security requires for entry to ExxonMobil’s Baton Rouge facility. These cards are available to U.S. citizens and certain noncitizens, but not DACA recipients.

The plaintiff learned that his immigration status left him ineligible for the credential card. He contacted ExxonMobil, and a human resource representative instructed him to state on his application that he would require sponsorship for a visa or employment authorization.

Soon after, ExxonMobil called the plaintiff to rescind his internship offer. It explained in a follow-up letter that a prerequisite of employment for the position he sought was that he had the permanent or indefinite right to work in the United States. ExxonMobil learned after making its offer that he did not meet this eligibility requirement.

The plaintiff sued ExxonMobil under 42 U.S.C. Section 1981, alleging that its policy was discriminatory based on alienage. ExxonMobil moved to dismiss the complaint, which the district court granted. The plaintiff then appealed the decision to the 4th Circuit.

On appeal, the 4th Circuit recognized that Section 1981 grants a private right of action for alienage discrimination by an employer. The claim requires evidence of a policy that intentionally discriminates based on alienage. The 4th Circuit recognized that the plaintiff established a disparate impact on noncitizens based on ExxonMobil’s policy.

As a matter of law, however, this does not establish alienage discrimination under Section 1981. The plaintiff must show discriminatory intent on the part of the employer, and in this case the plaintiff had not made a plausible claim of such intent in his complaint. Rather, the plaintiff’s own allegations showed that federal law dictated ExxonMobil’s response, as it rendered the plaintiff ineligible for employment at the company.

Analogizing from the U.S. Supreme Court’s decision in Bostock v. Clayton County, which found that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination, the 4th Circuit reasoned that the disparate outcome must be based upon a protected characteristic to show discrimination. The court reasoned that, to allege discrimination, the plaintiff would have to be able to show that, if a citizen somehow lacked permanent work authorization, the citizen would still be hired. Because he could not do so, the distinction did not discriminate based on alienage.

As a result, the 4th Circuit upheld the decision of the district court and dismissed the case.

De Leon Resendiz v. ExxonMobil Corp., 4th Cir., No. 21-2211 (July 10, 2023), motion for rehearing and rehearing en banc denied (Aug. 7, 2023).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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