Honolulu, HI, Oct. 4, 2023 — The Ninth Circuit heard oral arguments in Honolulu on the issue of whether 42 U.S.C. § 1981 extends to citizenship discrimination claims against U.S. citizens, in Rajaram v. Meta Platforms, Inc., No. 22-16870 (9th Cir.).
Mr. Rajaram sued Meta (Facebook) for citizenship discrimination, alleging that Meta prefers to hire foreign visa workers rather than U.S. citizens for domestic roles. The U.S. Department of Justice previously found reasonable cause to believe that Meta had engaged in a pattern-or-practice of citizenship discrimination.
While the Supreme Court has recognized that Section 1981 applies to citizenship discrimination claims brought by non-U.S. citizens, courts are divided on whether it applies to citizenship discrimination claims brought by U.S. citizens.
Section 1981 provides, in relevant part, that “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Courts have recognized that Section 1981 protects against discrimination only on the basis of race or citizenship.
As Daniel Low explained in briefing and at oral argument on behalf of Rajaram, there are several reasons that Section 1981 should be interpreted to apply to U.S. citizens. First, the statute does not limit the categories of people who may bring suit on the basis of citizenship discrimination, but applies broadly to “[a]ll persons.”
Second, the Supreme Court previously ruled that identical language in Section 1981 meant that the statue prohibited reverse racial discrimination against whites, and the Court’s reasoning applies equally to reverse citizenship discrimination against citizens. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285-96 (1976).
Third, legislative history reflects that Congress intended Section 1981 to broadly protect “all persons” and “all citizens.”
Fourth, while Meta relies on legislative history regarding the primary purpose of the legislation and post-enactment legislative history, the Supreme Court rejected similar arguments in Bostock v. Clayton County, 140 S. Ct. 1731, 1747, 1751-52 (2020) and other cases.
The panel consists of Judges Marsha Berzon, Eric Miller, and Lawrence VanDyke. Judge Berzon suggested that the statutory language could indicate a “statement of principle” rather than a statement of who can bring a lawsuit, and that it says that “all persons . . . shall have the same right, i.e., not a better right and not a worse right.”
Judge Eric D. Miller suggested that there “does seem to be a fairly straightforward textual argument that ‘the same’ means the same.”
Judge Lawrence VanDyke, meanwhile, expressed concern that if all persons had the same right to contract, that would require having “to pull people that are being treated better down.”
The parties’ briefs are linked here: Opening Brief; Opposition Brief; Reply Brief.
News coverage of the oral argument includes: https://news.bloomberglaw.com/daily-labor-report/meta-case-tests-limits-on-citizenship-bias-claims-at-ninth-cir ; https://www.law360.com/articles/1728745/9th-circ-mulls-legality-of-pro-foreign-bias-in-meta-hiring-suit