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Ninth Circuit:
Federal Statute Prohibits Citizenship Discrimination
Majority Says Law Providing ‘All Persons’ in Nation Have Same Rights Provides Naturalized Plaintiff Basis for Suit Over Noncitizen Hiring Preference, Drawing Dissent by VanDyke
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1 decision, that a federal statute providing that all persons within the jurisdiction of the U.S. shall have the same legal and contractual rights as “white citizens” prohibits employment discrimination on the basis of American citizenship.
The question arose in a case in which a naturalized citizen, Purushothaman Rajaram, sued Meta Platforms, Inc., alleging that the social media giant would not hire him as an information technology professional due to its preference for hiring noncitizens holding visas for specialty workers, to whom it could pay lower wages.
He invoked 42 U.S.C. §1981 which provides:
“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.”
Miller’s Opinion
Circuit Judge Eric D. Miller wrote the opinion reversing the dismissal of the action by Magistrate Judge Laurel D. Beeler of the Northern District of California for failure to state a claim. Miller said:
“The disputed question is whether section 1981 prohibits employers from discriminating against United States citizens. The statutory text answers that question in the affirmative. 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.’ ”
Miller noted that it is undisputed that the section provides a federal remedy against discrimination in private employment, but the parties disagree over whether citizens are a class protected under the statute. Finding that they are afforded protections by the section, he wrote:
“If some noncitizens have a greater right to make contracts than ‘white citizens,’ then it is not true that ‘[a]ll persons’ have the ‘same right’ to make contracts as ‘white citizens.’ That is precisely what the literal text of the statute prohibits.”
Meta’s View
Meta contends that the question should not be framed as who can sue under the section, but rather what a plaintiff can sue about, arguing that the protections in §1981 are limited to discrimination based on race or alien status rather than U.S. citizenship.
Unpersuaded, Miller opined:
“[A]ccepting Meta’s position would require us to accept that when Congress wrote ‘the same’ rights, it really meant rights ‘at least as great as’ those of white citizens. The problem with Meta’s position is that ‘the same’ means ‘the same.’ It does not mean ‘at least as great as.’”
He continued:
“Meta suggests that ‘all persons’ in section 1981 refers to the persons permitted to sue to obtain the same rights as white citizens. Under that reading, citizens are not protected because they necessarily—indeed, tautologically—have the same rights as citizens. But the statute states a principle of parity between ‘all persons’ and ‘citizens,’ violated if some persons have either greater or lesser rights than citizens. If noncitizens have greater rights than citizens, then the statute’s guarantee is violated, and an aggrieved party— here, an injured citizen—may invoke the cause of action….”
Miller noted that yesterday’s decision conflicts with that of the Fifth U.S. Circuit Court of Appeals in the 1986 caser of Chaiffetz v. Robertson Research Holding, Ltd. That circuit—“the only other court of appeals to consider this issue”— determined that §1981 did not protect against discrimination based on citizenship, he noted.
Senior Circuit Judge Marsha S Berzon joined in the opinion.
VanDyke’s Dissent
Circuit Judge Lawrence VanDyke dissented, expressing his view that the text of the statute does not support the majority view, remarking:
“This is not an easy interpretive case, and I personally like the majority’s conclusion better than mine. It’s only natural to think that this sort of discrimination protection should be reciprocal—if noncitizens can’t be discriminated against in favor of citizens, then surely citizens shouldn’t be disadvantaged in favor of noncitizens. This reading is particularly appealing today, when conditions create more incentives to discriminate against citizens. Illegal border crossings have increased year over year since 2021, with almost two million encounters reported during the first half of this fiscal year alone.”
He continued:
“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. A statute that protects against this sort of discrimination may be what this country needs, but it isn’t what Congress gave us in Section 1981. And it’s not my role to transform this statute into what I wish it was.”
The case is Rajaram v. Meta Platforms, Inc., 22-16870.
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