DACA recipient files lawsuit against VMWare for discriminatory employment

April 30, 2019, 12:10 a.m.

Sandy Vasquez has filed a lawsuit in the U.S. District Court for the Northern District of California against Palo Alto technology company VMware for discriminatory employment that violates state and federal laws. Vasquez claims that the software firm denied her a job she was qualified for due to her status as a Deferred Action for Childhood Arrivals (DACA) recipient.

VMWare is the first tech company to face a lawsuit of this nature — Silicon Valley tech companies have usually very publicly supported DACA recipients and immigrants. VMWare responded in a public statement on April 25, calling the case with Vasquez a “mistake” and saying that it “immediately set out” to correct the issue. The company told the Mercury News that it has hired DACA recipients in the past and was open to hiring them during while Vasquez was going through the application process.

“We take responsibility for this one negative experience and want to ensure no one else has been negatively impacted,” a company spokesperson told the Mercury News.

Vasquez applied for a job at VMware in January 2018, after which she received an interview request from Danielle French, a recruiter for the software firm for the position of Technical Support Engineer. According to the MALDEF complaint, French said that she thought Vasquez would “be a great fit” for the position.

Later that month, French conducted a phone interview with Vasquez, but French abruptly ended the call when Vasquez said that she was not a U.S. citizen, but that she was authorized to work under DACA. French allegedly explained to Vasquez that “VMWare requires that applicants be either a U.S. Citizen or a lawful permanent resident.”

The attorneys for the plaintiff alleged discriminatory practice by French in the hiring process and are seeking class action certification on the basis that VMware outwardly lists U.S. citizenship as a qualification for many of its jobs.

The suit cited job postings that read: “You must be a U.S. citizen or have a transferable visa (H-1B, Green Card, etc.) to apply,” or “You must be a U.S. citizen or permanent resident to apply for this role. VMware will not sponsor a non-transferable visa for this role.”

Vasquez’s attorney believes that these listings are enough evidence to pursue a class action suit against the company.

“If you’re a DACA recipient and you read that posting you’ll understand that while you’re not a resident [or] not a US citizen, you may be discouraged from applying,” said Julia Gomez of the Mexican American Legal Defense and Education Fund (MALDEF). “And that language is very similar to what Ms. Vasquez was told during her interview with the VMware recruiter.”

The complaint alleges that such behavior on the part of VMware would violate the federal Civil Rights Act of 1866, which prohibits intentional discrimination against employees based on national origin and California’s Private Attorneys General Act (PAGA) which prohibits labor code violations.

“I don’t want other DACA recipients to go through this,” Vasquez said in a MALDEF press release. “It’s not easy to obtain DACA, and employers shouldn’t be able to deny us the right to work simply because they choose to ignore that we have a work permit. This undermines both our ability to survive and the DACA initiative.”

While the company has admitted to its improper treatment of Vasquez, VMware insists that the decision was improper on the part of one recruiter, not a standard company practice — the firm denies any pattern of misconduct against other “Dreamers,” as DACA recipients are often called.

“We have created a global business that harnesses the power of the best and brightest talent, regardless of their country of origin,” a company spokesperson said to The Mercury News. “We support government policies that ensure that high-skilled workers can stay in the country and help U.S. companies remain globally competitive.”

VMware said that as soon as it found out about Vasquez’s situation, it offered her a personal recruiter to focus on identifying roles for which she was best suited. By this point, however, Vasquez had already accepted a job with another company.

In her suit, Vasquez claimed that there are undoubtedly more people who have experienced similar discrimination from VMware. The suit considers these cases “too numerous” to count but affirms Vasquez’s belief that mistreatment of others was inevitable considering VMware’s operation throughout the U.S. and the size of the non-citizen DACA population, numbering over a million.

Though VMware is unaware of any others who have been negatively affected by company policy, the firm plans to extend its offer of in-house recruiting catered to Dreamers to other future applicants.

Vasquez and her legal team are seeking compensatory damages for lost wages and emotional distress, as well as a court order banning further illegal employment practice at VMware.

Contact Andrew Tan at tandrew ‘at’ stanford.edu.

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