18th Annual Workplace Class Action Report - 2022 Edition

510 Annual Workplace Class Action Litigation Report: 2022 Edition (xix) Class Actions Under 42 U.S.C. Section 1981 Chattopadhyay, et al. v. BBVA USA, 2021 U.S. App. LEXIS 32109 (9th Cir. Oct. 26, 2021). Plaintiffs, a group of non-U.S. citizens, filed a class action alleging that Defendant violated 42 U.S.C. § 1981 and the California Unruh Civil Rights Act (“Unruh Act”) by discriminating against them on the basis of their citizenship in opening online banking accounts. The District Court granted Defendant’s motion to dismiss for lack of Article III standing. On appeal, the Ninth Circuit reversed and remanded the District Court’s ruling. The Ninth Circuit explained that to satisfy Article III standing, Plaintiffs "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of Defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id . at *1- 2. Plaintiffs alleged that Defendant offered them contracts on discriminatory terms because of their citizenship. Plaintiffs asserted that while Defendant permitted U.S. citizens to apply for a new checking account online, it required Plaintiffs to apply for a new checking account in person based solely on their status as non-U.S. citizens. The Ninth Circuit observed that under both the Unruth Act and 42 U.S.C. § 1981, individuals have a legally protected interest in making contracts free of citizenship discrimination. The Ninth Circuit held that Plaintiffs sufficiently alleged an injury-in-fact, i.e ., their right to contract free of citizenship discrimination, which included making contracts on the same terms offered to U.S. citizens. The Ninth Circuit also determined that Plaintiffs’ allegations satisfied Article III’s requirement for a concrete injury, as it has previously ruled that “discrimination itself . . . can cause serious non-economic injuries to those persons who are denied equal treatment solely because of their membership in a disfavored group." Id . at *3. Finally, the Ninth Circuit ruled that the alleged injury was fairly traceable to Defendant, as it was a direct result of Defendant’s own policy. For these reasons, the Ninth Circuit thereby reversed and remanded the District Court’s ruling. Maystrenko, et al. v. Fargo, 2021 U.S. Dist. LEXIS 218093 (N.D. Cal. Nov. 10, 2021). Plaintiffs, a group of Russian nationals living in California while their asylum applications were being reviewed, filed a class action alleging that Defendant denied them banking services based on a policy and practice of discriminating against non-United States citizens in violation of 42 U.S.C. § 1981 and the California Unruh Civil Rights Act. Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) for lack of standing, and under Rule 12(b)(6) for failure to state a claim. The Court denied the motion. Defendant maintained policies that limited the availability of credit cards, checking accounts, and personal loans "to U.S. citizens or legal permanent residents." Id . at *2. Plaintiffs contended that Defendant policies and practices amounted to "unlawful alienage discrimination in the making and enforcing of contracts in violation of 42 U.S.C. § 1981." Id. ¶ Defendant argued that Plaintiff Maystrenko declined to apply in person at a branch for a checking account, and therefore he failed to allege an injury-in-fact sufficient to establish standing. Defendant also argued that it was within its rights to rely on immigration status when extending credit or offering banking services. Id . at *3. The Court noted that the Ninth Circuit recently had concluded that Article III standing was established when a Plaintiff alleges that a bank allows United States citizens to apply for accounts and services online, but requires non-citizens to appear in-person at a branch. Accordingly, the Court found that Plaintiff Maystrenko had standing to bring his claim. The Court further ruled that Plaintiffs plausibly alleged discrimination on the basis of alienage under § 1981, and on the basis of citizenship or immigration status under the Unruh Act. Under § 1981, "all persons within the jurisdiction of the United States shall have the same right" to "make and enforce contracts . . . as is enjoyed by white citizens." Id . at *7. The Court opined that these rights applied to alienage. The Court also determined that Plaintiffs plausibly alleged that alienage was the "but-for" cause of the discrimination, as they asserted that Defendant expressly denied their applications for banking services because they were not United States citizens. Id. at *8. The Court explained that the Unruh Act guarantees "the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments," irrespective of citizenship or immigration status. Id . at *9-10. As such, the Court concluded that Plaintiffs’ complaint plausibly alleged an Unruh Act claim. For these reasons, the Court denied Defendant’s motion to dismiss. Resendiz, et al. v. Exxon Mobil Corp., 2021 U.S. Dist. LEXIS 185264 (E.D.N.C. Sept. 28, 2021). Plaintiff filed a class action alleging that Defendant subjected him to discrimination on the basis of his alienage in violation of 42 U.S.C. § 1981 when it rescinded an offer for Plaintiff to work as an intern at Defendant’s Baton Rouge facility. Defendant file a motion to dismiss for failure to state a claim, which the Court granted. Plaintiff had authorization to work in the United States through the Deferred Action for Childhood Arrivals ("DACA") initiative, and was a student at North Carolina State University pursuing a major in Chemical Engineering and Paper Science. During a recruiting event at the University, Defendant’s recruiters encouraged Plaintiff to apply for a chemical engineer