Hello, and welcome to Training with LegalEase. Today, I want to talk about a new theory that’s come down the pipeline based on non-citizen discrimination. I want to take time today to talk to employers about ways to avoid these claims during the hiring process.

In a recent case, an Indian citizen filed a lawsuit against Meta/Facebook, alleging that Meta favored non-citizens under its H-1B program. Now, interestingly, the US citizen filed the lawsuit under Section 1981 of the Civil Rights Act, which is typically used for race-based claims. However, if you look at the language of the statute, it basically says that all citizens are entitled to the same rights, including the right to enter  and enforce contracts. Section 1981  was implemented for the purpose of allowing black citizens to have the same rights as white citizens. US Citizens are now using Section 1981 to make non-citizen discrimination claims against companies hiring non-citizens. Stay with me!  Federal courts are ruling differently; some are ruling that this Section cannot be used while others are ruling it can be.

Employers  – avoid asking questions that could be viewed as discriminatory during the  hiring process. What questions am I talking about? Don’t ask questions like, What country are you from? Do you have a green card? Do you have a Social Security card? Are you a US citizen? Avoid asking these questions especially pre-offer to avoid the appearance of favoring non-citizens. There are ways to get around this and phrases to use.

You can contact us. If the issue is beyond our scope, then we can refer you to great immigration attorneys. Any employer who uses the H-1B program should beware and should be paying attention to these federal court rulings coming down the pipeline.

If you have any questions, give us a call. You can actually schedule a consultation from our website.

Thank you for joining Training with LegalEase.