By Bruce E. Buchanan, Siskind Susser PC

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The Office of the Chief Administrative Hearing Officer, through an Administrative Law Judge (ALJ), issued a decision in Gonzalez-Hernandez v. Arizona Family Health Partnership, 11 OCAHO no.1254 (July 2015), finding that the employer did not discriminate against the Complainant, Brian Gonzalez-Hernandez, because a DACA recipient is not a protected individual for citizenship status discrimination. Further, there was no document abuse.

Gonzalez-Hernandez, a DACA recipient with an Employment Authorization Document (EAD), applied for a position as a healthcare navigator. The job required extensive travel throughout Arizona. Thus, the job description required a valid Arizona Driver’s license. Arizona Family Health Partnership (AFHP) offered Gonzalez-Hernandez the job and requested him to provide proof of an Arizona driver’s license. Gonzalez-Hernandez stated he only had a California driving permit.

Thereafter, AFHP rescinded their offer of employment due to the lack of an Arizona driver’s license, but stated that once Gonzalez-Hernandez obtained such a driver’s license, he would be eligible for the position. AFHP cited the state law which requires anyone who works in Arizona for at least seven months in a year must obtain an Arizona driver’s license. At this point, Gonzalez-Hernandez notified AFHP that he was a DACA recipient, and under Arizona state law, was unable to obtain an Arizona driver’s license.

After AFHP hired someone else, Gonzalez-Hernandez filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) alleging discrimination and document abuse. Thereafter, the OSC provided a letter to Gonzalez-Hernandez giving him the right to pursue an action before OCAHO. Gonzalez-Hernandez filed such an action.

The ALJ found Gonzalez-Hernandez was not protected by the statute – a protected individual is a citizen or national of the United States, a permanent resident, refugee, asylee, or temporary resident agricultural worker. A DACA recipient does not fit into any of these categories; thus, this allegation was dismissed. The ALJ also dismissed the document abuse allegation for several reasons – Gonzalez-Hernandez was never asked to complete an I-9 form. AFHP’s request for a driver’s license was not to determine work authorization, and the request was for a legitimate, non-discriminatory reason – the job required an Arizona driver’s license.
Takeaways

Citizenship discrimination is limited to only those protected individuals and a DACA recipient is not protected. Furthermore, in order to establish document abuse, an employer must request an employee to complete an I-9 form.