Juarez v. Northwestern Mut. Life Ins. Co.: Can DACA Recipients Make a Claim for Alienage-Based Employment Discrimination Under 42 U.S.C. 1981?

Abstract

Until recently, undocumented immigrants facing employment discrimination on the grounds of immigration status were somewhat foreclosed from bringing alienage-based employment discrimination claims. This analysis has become more complex with executive programs such as Deferred Action for Childhood Arrivals (“DACA”). Otherwise deportable, individuals under the DACA status are granted an authorized period of stay and permitted to accept employment. With alienage claims excluded under the national origin ground of Title VII, Section 1981 may be a new avenue for certain non-citizens who experience employment discrimination on the basis of immigration status. As such, this Article seeks to determine whether 42 U.S.C. §1981 is a viable path for bringing alienage employment discrimination claims, especially for immigrants who are deemed lawfully present under a prosecutorial discretionary program such as DACA. First, Section I summarizes the current possibilities available to undocumented and documented immigrants advancing alienage employment discrimination claims. Then Section II examines Juarez v. Northwestern Mut. Life Ins. Co., a recent alienage discrimination case brought by a DACA recipient. Drawing from the analysis and the holding in Juarez, Section III concludes by determining whether 42 U.S.C. §1981 is a viable litigation pathway for alienage discrimination claims. Finally, Section III makes predictions surrounding the impact of Juarez on future alienage-based employment discrimination claims.