Agreement Reached in Class Action Hiring Discrimination Case Brought by DACA Recipient

Outten & Golden partner Ossai Miazad recently settled a hiring discrimination case against The Procter & Gamble Company (P&G) on behalf of David Rodriguez, a DACA recipient who applied for an internship at P&G, and others similarly situated to him.  The case sought to address P&G’s policy and practice of screening out internship and entry-level applicants who are non-United States citizens unless they held a long-term work authorization.

The case was filed as a putative class action in federal district court in Miami, Florida on July 17, 2017, raising claims of discrimination based on alienage in violation of Federal Code Section 1981, which guarantees equal rights under the law to make and enforce contracts, including employment contracts.  Federal Code Section 1981 is used to prevent intentional employment discrimination based on race or ethnicity, including citizenship discrimination.

Rodriguez and other class members applied for an internship or entry-level position at P&G, but they were denied employment. The job applicants that are part of this class action met all of the non-immigration criteria required by P&G for the position for which they applied. Moreover, the applicants were not United States citizens, permanent residents, asylees, or refugees at the time of applying to P&G.

The internship and entry-level applicants did, however, have the authorization to work in the United States at the time of the application. The applicants also did not require an employment-based visa petition to work at P&G at the time of the application or when the applicants expected to begin working at P&G. Finally, the applicants were not holders of an F or M visa, which could require an employer petition in the future.

Ultimately, P&G agreed to pay $1,500,000 to class members to settle the lawsuit in addition to settlement costs up to $80,000 and attorneys fees as approved by the court. The plaintiff Rodriguez may also request a Service Award for up to $20,000. P&G denies any wrongdoing and vigorously defended its policy over the course of nearly three years of litigation. “P&G is a major consumer company, and this settlement ensures that well-qualified, work-authorized DACA recipients will be able to contribute meaningfully to the company’s continued growth and success,” said Thomas A. Saenz, president, and general counsel for the Mexican American Legal Defense and Educational Fund (MALDEF).

P&G further agreed to injunctive relief and programmatic terms. P&G will ensure that DACA recipients will not be excluded from consideration for internships and job opportunities.  In addition to DACA recipients, other work-authorized, non-United States citizens such as Temporary Protected Status (“TPS”) holders, individuals granted Deferred Enforced Departure (“DED”), Violence Against Women Act (“VAWA”) self-petitioners, and U and T visa holders and derivatives of VAWA, U and T visas, will also be eligible for employment consideration under the policy. Additionally, P&G will add a statement to its Frequently Asked Questions (FAQ) page for two years indicating that people in these groups are eligible for employment if they are otherwise qualified.

To ensure P&G’s online job and internship application does not violate the terms of the settlement agreement, P&G will only ask if applicants are currently legally authorized to work in the country where the role is located and whether the applicants currently hold an immigration status (such as an F-1) that requires an employer to sponsor the applicant now or in the future. P&G stated that “P&G fully embraces diversity and inclusion as do our employees who represent more than 140 different nationalities.  We support the Administration and Congress’ work to find a legislative solution that provides both prospective employees and employers certainty, and allows the US to continue to benefit from the contributions of the over 600,000 Dreamers.” The P&G application FAQ page will explain that DACA recipients and other work-authorized, non-United States citizens who are otherwise qualified for the job are eligible for employment and should not answer yes to the question asking if they require an employer to sponsor them now or in the future.

As for the interview process, P&G agrees to train interviewers and recruiters about citizenship discrimination. The training will instruct interviewers and recruiters not to ask candidates about immigration status or employment authorization. Moreover, interviewers and recruiters will be provided with a list of FAQs that instruct them how to respond to applicant questions about immigration status and work authorization. The interviewers and recruiters should respond to such questions by telling applicants that DACA recipients and other work-authorized, non-United States citizens will be eligible to work at P&G if otherwise qualified.

“Access to internships and jobs like those offered by P&G is an incredibly important issue for DACA recipients who have lived in the U.S. since they were children and have gone to school — high school, college — and are well-positioned for success in their professional lives when given the opportunity,” said Ossai Miazad, lead counsel for Plaintiff.