DACA Job Discrimination or Cherry-Picking for Class Action Lawsuits?

A Brazilian recipient of DACA (Deferred Action for Childhood Arrivals) is suing Bank of America (BofA) after it declined to hire him as a “wealth manager” despite his educational qualifications. There are several interesting angles to the story.

First, although Brazilian, he’s being represented by the Mexican American Legal Defense and Educational Fund (MALDEF). Why is that, you ask? This isn’t just the goodness of their hearts speaking: You can be pretty sure that MALDEF is looking ahead to the fact that tens of thousands of DACA recipients are Mexican nationals, and the organization clearly hopes to use the Brazilian as its “tip of the spear”, which leads us to the next point.

Second, MALDEF is seeking to make this a class action lawsuit, even though there’s no indicator, at least in the articles, that BofA was routinely engaging in discrimination. A class action suit brings in the possibility of large cash settlements in which MALDEF will share, or perhaps take the lion’s share since it’s almost certainly doing the legal work pro bono (free).

Third, the article notes that this is the second such lawsuit filed on the Brazilian’s behalf against a big-name financial firm, the other being Allied Wealth Partners. One is obliged to ask: Is he just particularly ill-fortuned, or has MALDEF sent him on a cherry-picking mission to gin up lawsuits, rather than actually obtain gainful employment?

Fourth, there’s an interesting twist here. From the article, one can reasonably infer that although at the time he applied, he had work authorization from the Department of Homeland Security (DHS), in future he would need to renew it. In fact, he asserts that he said as much at both firms when job hunting. Of course, the future of DACA is in doubt because the president ordered it terminated, and although various courts have enjoined the termination, it’s clear that this is headed to the Supreme Court for final adjudication. If it’s permitted to end, the Brazilian’s out of luck short of a congressional amnesty fix.

So did he have a right to the job? On its face, the quick answer may be yes (let me strongly emphasize the word “may”), if indeed the circumstances are as he claims and there aren’t any hidden facts not in evidence. But think about the job he wanted: wealth management advisor. That’s the person you rely on to manage your funds on a long-term basis to ensure that they grow. Given the type of responsibilities entailed, wouldn’t potential employers be right to measure two equally poised and qualified candidates by their employment staying power, where one candidate’s right to work might end precipitously in the not-distant future?

These days, financial advisors aren’t just for the well-heeled. Many companies, and even federal and state governments, have substituted pension plans with matching-contribution plans (like 401(k)) that rely on stock and bond portfolios to produce the money needed to fund your retirement. Those plans rely in turn on companies like Allied and BofA to do the actual day-to-day business of managing tens (or hundreds) of billions of dollars in investments of ordinary folks who will need that money when they age out of the workforce. People like you and me.

Do you really want companies to be relying on an individual who may not be there in six months or a year? What kinds of decisions is he making with your investments in the interim if he suspects he may not be there for the long term? Will they be wise? Will he care if they are or not, especially if DACA is ordered ended by the Supreme Court and his personal life is in turmoil?

Finally, how does engaging in the hire of short-term wealth managers, which certainly seems fraught with risk, interact with the company’s fiduciary obligation to exercise reasonable prudence when investing in your behalf? Perhaps one such person does no harm, because he can be subbed out by a replacement. But what if companies hire several such individuals for fear of being sued for discrimination if they don’t? After all, MALDEF and the complainant are attempting to launch a class action lawsuit.

I hope that these are things the court will consider as it goes about the business of hearing the case. I also hope the court will think carefully about the propriety of certifying a class action. Such a decision shouldn’t be taken lightly, however much it might be all the rage among activist jurists in some places.



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