While a long-term workforce may be laudable, an employer cannot use this goal to justify its refusal to hire individuals without permanent work authorization.  In Rodriguez v. The Proctor & Gamble Company (Case No. 17-22652-CIV-Williams), the U.S. District Court for the Southern District of Florida recently denied Proctor & Gamble’s Motion for Summary Judgment, permitting this 42 U.S.C. Section 1981 case to move forward to trial.  Rodriguez, a Venezuelan citizen, was approved for Deferred Action for Childhood Arrivals (“DACA”) in 2012, and consequently received work authorization that was not restricted to any specific employer (though DACA recipients must renew their status every two years).  

In 2013, Rodriguez applied for a 10-12 week finance and accounting internship at Proctor & Gamble.  Proctor & Gamble espouses a “development from within” policy, which is designed to foster long-term employees.  Its online application included a series of immigration-related questions, which categorically excluded applicants who were not U.S. citizens, legal permanent residents, asylees, or refugees (the later three groups hold “permanent” work authorization).  As such, Rodriguez’s application was summarily rejected, even though he held unrestricted work authorization, and was applying for a three-month internship.

Proctor & Gamble argued that its policy was based on an applicant’s ability to work in the U.S. permanently, and that immigration status did not equate to alienage discrimination under Section 1981.  The court rejected that argument, finding that Section 1981’s protection against alienage discrimination extended to DACA recipients, and that Proctor & Gamble’s policy is facially discriminatory.  The company’s attempt to analogize this case to an Equal Protection Clause matter which upheld DACA-related restrictions at certain Georgia public universities similarly failed.  As the court explained, “Here, the record suggests that P&G’s policy excludes DACA applicants from all positions at the Company.  And if all employers could adopt similar policies categorically rejecting DACA recipients, their ability to exist in the community and deferred action status would be undermined . . .”

While employers are under no obligation to sponsor an individual for an employment-based visa, companies must be careful in enacting policies designed to eliminate work-authorized applicants who hold visas, fall into certain categories (such as applicants for adjustment of status or VAWA-approved individuals), or whose work authorization may expire in the future.  If you are considering hiring a foreign national, or have questions about your obligations as an employer, we can help.       

Kristin A. Zech is an employment lawyer with Berenzweig Leonard, and leads the firm’s Immigration Practice.  She can be reached at 703-940-3788 or [email protected]