Will the Administration’s Deferred Action Directives Bring a New Wave of Class Actions?

A recent class action alleging discriminatory hiring practices against beneficiaries of the Department of Homeland Security’s Deferred Action for Childhood Arrivals (“DACA”) deserves attention in light of President Obama’s recent directive to defer action for as many as five million individuals. The suit was filed this past July in the Southern District of New York and is currently pending before Judge Katherine Forrest. The named plaintiff alleges the company’s hiring policies constitute unlawful discrimination based on alienage under 42 U.S.C. § 1981. Courts have long been resistant to allowing alienage claims under Title VII, which does however allow closely related national origin discrimination claims, and that is likely why the plaintiff has sued under Section 1981, which prohibits discrimination based on alienage.