Meta is headed for a legal showdown after judges ruled a hiring discrimination case in the US shouldn't have been dismissed and can go to trial.

The case [PDF] concerns one Purushothaman Rajaram, who sued the internet titan in May 2022. On the face of it, his complaint is pretty simple.

Rajaram claimed that on two separate occasions in 2020 he was interviewed for a position at Meta's Facebook that would involve the design and development of product lifecycle management software, which he says he has nearly two decades of experience building and shipping as an industry veteran. In both instances, Rajaram was told Facebook was interested in him, and one interviewer even said he was "the right guy," according to his lawsuit.

However, he wasn't hired for either position, and after his second interview was merely told that Facebook had "decided not to move forward with the next steps."

The complaint alleges Rajaram was not hired because he is a naturalized US citizen rather than a foreign worker on a visa. The lawsuit itself doesn't provide much hard evidence for this, though it does claim the position Rajaram applied for went to an H-1B visa holder.

It also brings up Facebook and Meta's high reliance on foreign visa workers. The mega-corp had to cough up $14 million in 2021 to end a fight with the US Dept of Justice over allegations the Mark Zuckerberg-run giant discriminated against citizens by preferring to hire migrant workers.

Many in the IT industry see America's visa program as a way for tech companies to import and employ skilled foreigners who will get paid a load more in the States than in their home countries, even if it's less than what an equivalent American techie would pull in or expect to pull in, and are tied to their employer by their visa.

Paperwork like the H-1B does allow some movement between companies, though the bureaucracy and rules involved tends to keep foreign staff locked in until they can achieve permanent residency that grants them near-citizen-level freedom and puts them on a pathway to naturalization. Also, the US government does try to check that imported workers are paid at least the so-called prevailing wage for their given position, to ensure Americans aren't undercut by cheap labor, but it's not a perfect system.

At its heart, this specific case hinges on US citizens being a protected class in the legal sense, which would mean it's rather illegal to discriminate against them. It cites 42 U.S. Code § 1981, which says "all persons within the jurisdiction of the United States shall have the same right in every state and territory … as is enjoyed by white citizens," interpreting that civil-rights legislation to mean any and all US citizens can't be discriminated against.

However, Meta filed a motion to dismiss the lawsuit, saying the plaintiff was misinterpreting the statute and that citizens were not a protected class as described. A federal district court in California agreed, throwing out the case in November 2022.

Rajaman appealed the next month to the Ninth Circuit, which filed its decision today. In a 2-1 ruling [PDF], the judges decided that the lower court shouldn't have dismissed the case and that US citizens were a protected class, which means the case is back on and can go to trial.

"Discrimination based on alienage is indeed different from racial discrimination, but it is not different in any way that is relevant to the text of section 1981," Judge Eric Miller wrote in the majority opinion. "Nowhere does the statute 'use the term "alien" to describe those to whom it extends protection.'"

Whether US citizens are a protected class may be legally contentious

However, dissenting Judge Lawrence VanDyke cautioned his colleagues that the principle of US citizens counting as a protected class wasn't that simple even though it sounded right on the surface.

It's not my role to transform this statute into what I wish it was

"The majority seems to think otherwise because it claims the text of Section 1981 'clear[ly]' protects citizens from discrimination on the basis of citizenship," he said. "That conclusion is appealing, but not because of textual clarity. It's appealing because it's natural to think that if Congress protected non-citizens then surely it must have protected citizens too."

"A statute that protects against this sort of discrimination may be what this country needs," VanDyke continued, "but it isn't what Congress gave us in Section 1981. And it's not my role to transform this statute into what I wish it was."

Judge VanDyke also pointed out that the Ninth Circuit's decision was at odds with a 1986 case that came to a very different conclusion on what he says was "the exact same issue." The precedent left by the 1986 decision may embolden Meta to appeal the decision and get the case dismissed again, possibly roping the Supreme Court into the legal proceedings before the case even goes to trial.

The Register reached out for comment to Meta, and it has not yet replied. ®

https://www.theregister.com//2024/06/27/lawsuit_appeals_meta_h_1b/