Excerpted from a Constangy Brooks Smith & Prophete LLP blog by Willard Krasnow

Zoom Video Communications, Inc., has been sued for alleged hiring discrimination against a Deferred Action for Childhood Arrivals (DACA) program recipient.

According to the lawsuit filed by Royer Ramirez Ruiz, Zoom made improper pre-employment inquiries and ultimately rejected him for employment “due to immigration,” even though he was authorized to work in the U.S. under the DACA program.

Under DACA, protection from deportation and work authorization are available for qualifying individuals, typically those who came to the U.S. illegally as children and stayed here.

The lawsuit, filed in federal court in Seattle, is being brought under the Washington (State) Law Against Discrimination and 42 U.S.C. Section 1981, alleging discrimination based on alienage.

Zoom has not had an opportunity to respond. However, allegations in the lawsuit serve as a useful reminder how not to handle immigration status in the hiring process.

According to the lawsuit, Mr. Ramirez Ruiz was born in Mexico in 1995. He was brought to the U.S. in 2001 by his parents and has remained here since then. In 2012, when DACA was first established by President Obama’s Executive Order, Mr. Ramirez Ruiz applied. He was granted DACA status and has been authorized to work in the U.S. since his approval.

After obtaining a bachelor’s degree in mathematics, Mr. Ramirez Ruiz worked as a software developer. In July 2021, a “Technical Sourcer” contacted him to discuss an open position at Zoom. According to the lawsuit, Mr. Ramirez Ruiz was asked whether he required sponsorship, and he replied he did not. During a subsequent interview with a recruiter, Mr. Ramirez Ruiz confirmed he was legally authorized to work in the U.S.

Mr. Ramirez Ruiz alleges he participated in a video call with another recruiter on July 26, and the recruiter indicated he was an ideal candidate. However, he alleges as the call was ending, the recruiter asked about his need for sponsorship. Mr. Ramirez Ruiz again confirmed that he did not require sponsorship.

According to the lawsuit, instead of dropping the matter, the recruiter asked Mr. Ramirez Ruiz whether he was a citizen of the U.S. When he answered, “No,” the recruiter allegedly asked whether he was a permanent resident.

The lawsuit contends the recruiter continued to pressure Mr. Ramirez Ruiz to disclose the program that granted him work authorization. According to the lawsuit, “Plaintiff tried to dodge the question multiple times, not wanting to share his specific immigration status and knowing that at this point in the hiring process he was not required to share anything other than that he was legally authorized to work in the U.S.”

When he finally disclosed he was a DACA recipient, the recruiter allegedly responded, “Oh, that might be an issue.” He allegedly told Mr. Ramirez Ruiz that he would check out the issue internally before sending Mr. Ramirez Ruiz’s resume to a hiring manager.

Two days later, he alleges, he received an email from the recruiter saying, “It does not look like we can move forward due to immigration.”

Mr. Ramirez Ruiz sought a further explanation from the recruiter because his DACA status had never been an issue in employment, but he did not receive a response.

It’s important to note the lawsuit does not specifically allege the recruiters were Zoom employees, as opposed to employees of a third-party recruiter doing work for Zoom.

Cautionary tale for employers
No matter the result of the lawsuit, the allegations provide helpful guidance to employers as how not to handle a candidate’s immigration status during job interviews.

Although the Immigration Reform and Control Act (IRCA) allows employers to ask whether an applicant is legally authorized to work in the U.S. and whether sponsorship is required, recruiters in this case allegedly went far beyond that.

They asked whether Mr. Ramirez Ruiz was a U.S. citizen, asked whether he was a permanent resident, and asked about the program under which he was authorized to work. Then, when he disclosed under pressure he was a DACA recipient, he was told, “That might be an issue” and was ultimately denied employment because of his status.

There is another problem, assuming the allegations in this lawsuit are true. Under IRCA, an employer may not question an employee’s documents or responses if they meet I-9 requirements.

According to Mr. Ramirez Ruiz, he said he was legally authorized to work in the U.S. and did not require sponsorship. If true, and assuming he really was the most qualified candidate for the position, he should have been hired and should have been allowed to choose the documents to submit to prove his identity and employment authorization in accordance with IRCA. His Employment Authorization Document would have proven both.

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