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P&G Must Face DACA Discrimination Suit

Apr 2, 2018 / Media Coverage / Law360 — Tiffany Hu

A Florida federal court denied the Procter & Gamble Co.’s attempt to toss a proposed class action by a rejected prospective intern claiming the company discriminates against those with temporary work authorization under the Deferred Action for Childhood Arrivals program, finding the man properly alleged its hiring practices are biased.

U.S. District Judge Kathleen M. Williams said on Friday that Venezuela native David M. Rodriguez had shown enough facts in his allegations that P&G chose not to hire him and other DACA recipients because of their noncitizen status, allowing the putative class action against the company to move forward.

The judge refused to dismiss the case despite P&G’s argument that it was allowed to take into consideration the applicants’ work authorization status in evaluating candidates, which it said was not protected by anti-discrimination statute.

“Despite PG's argument that at most, PG discriminated based on immigration status, at the pleadings stage, the court may only rely on the allegations stated in the complaint, which in this case asserted a 'facially discriminatory employment policy,' against a subclass of lawfully present aliens,” Judge Williams said. “[E]ven if defendant has Iawful business reasons to reject applications from DACA recipients, those reasons cannot be properly determined on a motion to dismiss.”

Judge Williams agreed that Rodriguez had standing to sue the company, finding that P&G’s hiring policies excluding nonpermanent residents, such as Rodriguez, was evidence of discrimination based on immigration status.

In doing so, the judge rejected P&G’s contention that Rodriguez had failed to state a claim in his discrimination suit against the company. P&G asserted in its August motion to dismiss the case that Rodriguez had overlooked the “well-established” difference between citizenship status, which is protected by anti-discrimination statute, and work authorization status, which is not.

P&G also pointed out that it routinely hired immigrants, and only filtered out those with “restraints” on their work authorization from applying. Congress “never defined DACA-authorized immigrants as protected from discrimination,” the company argued.

But Rodriguez fought back, arguing that a policy that does not affect all immigrant applicants may still be discriminatory. Citing Eleventh Circuit precedent that “lawful treatment of some members of a protected class never inoculates a defendant from liability for discriminating against others,” Rodriguez contended that P&G’s hiring practices plainly target certain immigrant subgroups, and as such, he had standing to sue.

Rodriguez filed the proposed class action suit in July against the consumer goods giant. After he had submitted an application for a paid internship, he received a questionnaire with four questions about his immigration status, he said. He had answered “no” to three questions asking if he had various specific types of immigration and visa statuses and “no” to a question asking if he would need sponsorship for U.S. employment visa status, according to the complaint.

Rodriguez was then rejected for the position in October 2013, and a recruiter told him that “per P&G policy, applicants in the U.S. should be legally authorized to work with no restraints on the type, duration or location of employment,” according to the suit.

The suit accuses P&G of not giving him and other nonpermanent residents equal opportunity in P&G job applications as well as terminating noncitizens “ostensibly” for their immigration status, a violation of the Civil Rights Act of 1866.

The suit seeks unspecified damages, back pay, declaratory judgment that P&G’s practice violates the Civil Rights Act and an order for the company to restore members of the proposed class to their positions at P&G as applicants, contractors or employees.

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Rodriguez is represented by Cary David Steklof and Jason Seth Mazer of Ver Ploeg & Lumpkin PA, David Lopez, Nina Martinez, Ossai Miazad and Sally J. Abrahamson of Outten Golden LLP and Nina Perales, Burth G. Lopez and Thomas A. Saenz of the Mexican American Legal Defense and Education Fund Inc.
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The case is Rodriguez v. The Procter & Gamble Company, case number 1:17-cv-22652, in the U.S. District Court for the Southern District of Florida.

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