Ninth Circuit Permits Citizenship Discrimination Claim

The Ninth Circuit Court of Appeals ruled today in Rajaram v. Meta Platforms, Inc. that a United States citizen can sue for discrimination based on their citizenship under Section 1981. This novel decision on a lesser-known law sets up a split in the federal circuits.

Part of the Civil Rights Act of 1866, Section 1981 is traditionally used to address intentional race discrimination. The statute guarantees “all persons within the jurisdiction of the United States” to the “same right . . . 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 . . . .”  While Section 1981 claims can be brought with Title VII claims, there is no cap on damages under Section 1981 and there is no obligation to first take the claim to the Equal Employment Opportunity Commission or the Nevada Equal Rights Commission. 

Here, an IT professional sued Meta alleging that he was not hired because he was a U.S. citizen; he contended that Meta prefers to hire noncitizens holding H-1B visas. His class action lawsuit was dismissed by a California federal court which decided Section 1981 does not bar discrimination based on U.S. citizenship.

At least two judges of the Ninth Circuit Court, which has jurisdiction over Nevada, disagreed, finding that Section 1981 prohibits employers from discriminating against U.S. citizens. Admitting that “claims by citizens were not the principal evil Congress was concerned with in enacting section 1981,” the Court found that the text of the law clearly provides all citizens with the same rights as noncitizens. The dissenting judge found the law’s language to be ambiguous and agreed with the only other federal appeals court to address this question, the Fifth Circuit, which has determined that Section 1981 does not protect against citizenship discrimination.

Decisions on the scope of Section 1981 are not common, and cases about citizenship discrimination are even less common. Savvy employers will want to keep an eye on this issue, which will likely continue to develop. 

As always, if you have questions about this case or these types of discrimination claims, please reach out to a KZA attorney. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.