An American citizen, who says he was repeatedly rejected for software engineering jobs at Meta, has been cleared to resume his class action discrimination lawsuit against the company accusing it of illegally preferring to hire cheaper immigrants over U.S. citizens, as a federal appeals panel ruled a 19th Century anti-discrimination law that extended civil rights to immigrants also protects U.S. citizens from discrimination.
The 2-1 ruling was delivered on June 27, and featured a rare split between two appointees of former President Donald Trump on the U.S. Ninth Circuit Court of Appeals.
The decision was authored by Ninth Circuit Judge Eric D. Miller, who was appointed by Trump. He was joined in the ruling by Judge Marsha S. Berzon, an appointee of former President Bill Clinton.
Miller's fellow Trump appointee, Judge Lawrence VanDyke, "reluctantly" dissented from the majority opinion.
The ruling centered on a class action lawsuit led by named plaintiff Purushothaman Rajaram.
Rajaram, a naturalized U.S. citizen, filed suit in San Francisco federal court in 2022. In that lawsuit, Rajaram accused Meta, the parent company of the Facebook and Instagram social media platforms, of discriminating against U.S. citizens by allegedly preferring to hire software engineers and other professionals who immigrate to the U.S. from other countries under work permits known as H1-B visas.
The lawsuit asserts Meta prefers to hire such "visa-dependent" immigrant workers the positions of software engineer, research scientist, data scientist, data engineer and engineering manager, because "it can pay these employees less than American workers performing the same work."
According to the complaint, Meta hired more than 20,000 such H1-B visa workers from 2013-2022, accounting for more than 15% of its U.S. workforce.
According to court documents, Rajaram applied for several positions within Facebook on several occasions from 2020-2022, but was turned down each time.
His lawsuit asserts he was not hired because Meta preferred to hire non-U.S. citizens for those open positions.
The lawsuit followed an enforcement action from the U.S. Justice Department against Meta, which was settled in 2021.
In the complaint, Rajaram and his lawyers accused Meta of violating one of America's oldest civil rights laws. Known as Section 1981(a), the law was enacted by Congress in 1870 in the wake of the Civil War and the passage of the Constitution's Fourteenth Amendment to prevent discrimination and abuses against Chinese immigrant workers in California and elsewhere.
The law states: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
The lawsuit asserted Section 1981 should be read to not only prevent discrimination against non-U.S. citizens living and working in the U.S., but also to prevent discrimination against U.S. citizens.
In San Francisco federal district court, Meta prevailed, persuading a federal magistrate judge to toss the case. Meta had argued the law's protections strictly applies to non-citizens in the U.S.
While the law bars discrimination on basis of race and so-called "alienage," or immigration status, it doesn't similarly bar discrimination on the basis of citizenship, Magistrate Judge Laurel Beeber ruled in dismissing the case in 2022.
The law merely means that immigrants cannot be denied the same rights granted to citizens under U.S. law, Beeber ruled.
Rajaram and his lawyers appealed the ruling to the Ninth Circuit, arguing federal anti-discrimination law cannot be read to forbid discrimination against non-citizens, while freely allowing employers and others to discriminate against U.S. citizens on the basis of their citizenship.
On appeal, the majority on the three-judge panel hearing the case agreed with Rajaram.
Using the term "white citizens" as it appears in the text of the law from 1870, Judge Miller wrote:
"An employer that discriminates against United States citizens gives one class of people - noncitizens, or perhaps some subset of noncitizens - a greater right to make contracts than 'white citizens.' If some noncitizens have a greater right to make contracts than 'white citizens,' then it is not true that 'all persons' have the 'same right' to make contracts as 'white citizens.' That is precisely what the literal text of the statute prohibits," Miller said.
The majority noted in its 1976 decision in McDonald v Santa Fe Trail Transportation Co., U.S. Supreme Court interpreted Section 1981 to affirm that the law's workplace anti-discrimination protections extended to white Americans, as well as those other races.
The majority said the McDonald decision also specifically rejected "an argument similar to Meta's," noting the law "explicitly applies to 'all persons,'" and not just those of the other races Congress may have had in mind when establishing the protections in 1870.
In the new ruling, the Ninth Circuit panel majority said, similarly, the law's protections for non-citizens should also extend to U.S. citizens.
"If white persons as well as nonwhite persons can sue to enforce that guarantee - a principle the McDonald Court considered 'explicitly' set out in the text - then so too can citizens as well as noncitizens," Miller wrote for the majority.
They noted the only other federal appeals circuit court to consider the question reached a different conclusion, when the Eleventh Circuit Court of Appeals ruled in 1986 that "it 'does not follow' that because Section 1981 protects white persons from racial discrimination, it also protects citizen from citizenship discrimination."
Such so-called "circuit splits" can tee up decisions for potential dates with the U.S. Supreme Court, as it would mean different people residing in different parts of the country would be subject to different interpretations of the law.
The case could also face a potential rehearing before a larger panel of the U.S. Ninth Circuit Court of Appeals judges under a so-called en banc hearing. The Ninth Circuit in recent years has repeatedly vacated decisions from three-judge panels that have politically tilted to the right, such as those upholding Second Amendment rights.
In dissent, VanDyke did not disagree that U.S. citizens could face discrimination, particularly under current socioeconomic and political conditions in the U.S.
But he said he agreed with the Eleventh Circuit's and Judge Beeber's reading of the text of 1981, which he said does not explicitly grant protections to U.S. citizens from discrimination on the basis of their citizenship.
VanDyke noted an influx of illegal immigrants into the country in recent decades, and particularly in the past few years under the looser immigration policies of President Joe Biden, have created a situation in which a large number of employers could be led to prefer hiring immigrants over American citizens, as immigrants often are willing to accept lower wages.
But he said his reading of the law did not allow for him to reach the same conclusion as his colleagues in the majority concerning the reach of the anti-discrimination law. Instead, he suggested the country may benefit from a new law, explicitly declaring that companies cannot discriminate against U.S. citizens when hiring.
"Given that it is easier to pay such noncitizens lower wages, it’s easy enough to see how this creates growing economic pressure to favor noncitizens over citizens," VanDyke wrote. "A statute that protects against this sort of discrimination may be what this country needs, but it isn’t what Congress gave us...
"And it’s not my role to transform this statute into what I wish it was."
A spokesperson for Meta did not reply to a request from The Record for comment on Thursday about the decision or their intentions for action in light of that decision.