Judge Rejects Facebook’s Bid to Dismiss Lawsuit Claiming Discrimination Against American Workers

June 11, 2021 Updated: June 11, 2021

An administrative law judge has ruled that Facebook must face allegations that it discriminated against U.S. workers based on their citizenship by reserving thousands of jobs for temporary visa holders, Department of Justice (DOJ) documents show.

On June 8, the DOJ’s Executive Office for Immigration Review announced that the Office of the Chief Administrative Hearing Officer (OCAHO) published a decision (pdf) by Administrative Law Judge (ALJ) Andrea R. Carroll-Tipton that denied Facebook’s motion to dismiss a lawsuit accusing the social media giant of discriminatory hiring practices.

Facebook sought to dismiss the lawsuit, initially brought by the DOJ against the company in December 2020, which alleged that the social media giant refused to consider or hire qualified and available U.S. workers for over 2,600 positions that it hoarded for temporary visa holders it sponsored for permanent work authorization, or “green cards,” in connection with the permanent labor certification process (PERM).

“The Department of Justice’s lawsuit alleges that Facebook engaged in intentional and widespread violations of the law, by setting aside positions for temporary visa holders instead of considering interested and qualified U.S. workers,” said Assistant Attorney General Eric S. Dreiband of the Civil Rights Division, in a statement.

“Our message to workers is clear: if companies deny employment opportunities by illegally preferring temporary visa holders, the Department of Justice will hold them accountable,” Dreiband said. “Our message to all employers—including those in the technology sector—is clear: you cannot illegally prefer to recruit, consider, or hire temporary visa holders over U.S. workers.”

The PERM program works to hire from inside the company, creating permanent jobs for temporary visa holders who want to continue working for a given firm, subject to the condition that the process does not adversely impact the job opportunities for U.S. workers. But the DOJ alleged that, in Facebook’s case, the way the program was structured was discriminatory because even if U.S. citizens applied for these jobs, they would not be considered because the positions were reserved for temporary visa holders.

The DOJ said that, unlike other open positions, Facebook’s PERM program jobs were not advertised online and applicants were pre-selected based on their immigration status and invited to send in their application by email. This led to the situation in which U.S. workers were unfairly denied an opportunity to be considered for these jobs, the DOJ said.

In its motion to dismiss the lawsuit, Facebook argued that the ALJ lacked subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted.

In her decision to deny Facebook’s motion to dismiss, Carroll-Tipton acknowledged that she lacked subject matter jurisdiction to determine whether Facebook broke PERM regulations, but determined that OCAHO has such jurisdiction. She also found that the pleading standards were met by the DOJ in bringing forward the lawsuit.

“As the Court has previously held, allegations of manipulating the hiring practice to disqualify individuals based on citizenship, meet the legal standard in this forum for stating a claim upon which relief can be granted,” she wrote in the opinion.

The lawsuit is part of the DOJ’s Protecting U.S. Workers Initiative, established in 2017 under the administration of then-President Donald Trump.

Following the filing of the initial complaint in December, Facebook issued a statement to NPR, saying it has been cooperating with the DOJ’s review “and while we dispute the allegations in the complaint, we cannot comment further on pending litigation.”

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