FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PURUSHOTHAMAN RAJARAM, 

Plaintiff-Appellant, 

 v. 

META PLATFORMS, INC., FKA 

Facebook, Inc., 

Defendant-Appellee.

No.22-16870 

D.C. No.

3:22-cv-02920-LB 

OPINION

Appeal from the United States District Court

for the Northern District of California

Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted October 4, 2023

University of Hawaii at Manoa

Filed June 27, 2024

Before: Marsha S. Berzon, Eric D. Miller, and Lawrence 

VanDyke, Circuit Judges.

Opinion by Judge Miller;

Dissent by Judge VanDyke
2 RAJARAM V. META PLATFORMS, INC.

SUMMARY*

Employment Discrimination

Reversing the district court’s dismissal of an 

employment discrimination action, and remanding, the panel 

held that 42 U.S.C. § 1981 prohibits discrimination in hiring 

against United States citizens on the basis of their 

citizenship.

Purushothaman Rajaram, a naturalized United States 

citizen, alleged that Meta Platforms, Inc., refused to hire him 

because it prefers to hire noncitizens holding H1B visas to 

whom it can pay lower wages.

Section 1981(a) provides:

All persons within the jurisdiction of the 

United States shall have the same right in 

every State and Territory to make and enforce 

contracts, to sue, be parties, give evidence, 

and to the full and equal benefit of all laws 

and proceedings for the security of persons 

and property as is enjoyed by white citizens, 

and shall be subject to like punishment, pains, 

penalties, taxes, licenses, and exactions of 

every kind, and to no other.

Disagreeing with the Fifth Circuit, the panel held that, 

according to the statutory text, section 1981 prohibits 

employers from discriminating against United States 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
RAJARAM V. META PLATFORMS, INC. 3

citizens because an employer that does so gives one class of 

people—noncitizens, or perhaps some subset of 

noncitizens—a greater right to make contracts than “white 

citizens.” If some noncitizens have a greater right to make 

contracts than “white citizens,” then it is not true that “[a]ll 

persons” have the “same right” to make contracts as “white 

citizens.”

Dissenting, Judge VanDyke, applying what he thought 

was the better reading of an admittedly ambiguous text, and 

informed by the statutory development of section 1981, 

concluded that the statute does not protect citizens from 

discrimination on the basis of citizenship.

COUNSEL

Daniel L. Low (argued) and Daniel Kotchen, Kotchen & 

Low LLP, Washington, D.C., for Plaintiff- Appellant.

Lauren R. Goldman (argued), Gabrielle Levin, and Emily 

Black, Gibson Dunn & Crutcher LLP, New York, New 

York; Kelley Pettus, Gibson Dunn & Crutcher LLP, Denver, 

Colorado; Michele L. Maryott and Daniel R. Adler, Gibson 

Dunn & Crutcher, Irvine, California; for DefendantAppellee.
4 RAJARAM V. META PLATFORMS, INC.

OPINION

MILLER, Circuit Judge:

This case presents the question whether 42 U.S.C. 

§ 1981 prohibits discrimination in hiring against United 

States citizens on the basis of their citizenship. We conclude 

that it does.

Purushothaman Rajaram is a naturalized United States

citizen and an information technology professional with 

experience managing software development projects. On 

several occasions between 2020 and 2022, he unsuccessfully 

applied to work at Meta Platforms, Inc., which operates 

Facebook, Instagram, and WhatsApp, among other online 

services. He alleges that Meta refused to hire him because it

prefers to hire noncitizens holding H-1B visas to whom it 

can pay lower wages. The H-1B program allows employers 

to hire qualified foreign workers for specialty occupations 

when there is a shortage of skilled workers authorized to 

work in the United States. See 8 C.F.R. § 214.2(h)(1)(ii)(B).

Rajaram brought this putative class action asserting a 

single claim: that Meta violated section 1981 by 

discriminating against United States citizens in hiring. The 

district court dismissed the complaint, holding that section 

1981 “does not bar discrimination based on U.S. 

citizenship.”

We review the district court’s interpretation of the statute 

de novo. United States v. Salazar, 61 F.4th 723, 726 (9th Cir. 

2023). We begin with the statutory text. Hall v. United States 
RAJARAM V. META PLATFORMS, INC. 5

Dep’t of Agric., 984 F.3d 825, 837 (9th Cir. 2020). Entitled 

“Statement of equal rights,” section 1981(a) provides:

All persons within the jurisdiction of the 

United States shall have the same right in 

every State and Territory to make and enforce 

contracts, to sue, be parties, give evidence, 

and to the full and equal benefit of all laws 

and proceedings for the security of persons 

and property as is enjoyed by white citizens, 

and shall be subject to like punishment, pains, 

penalties, taxes, licenses, and exactions of 

every kind, and to no other.

Two aspects of section 1981 are not in dispute. First, 

although the statute does not expressly provide a cause of 

action for those injured by violations of the 

nondiscrimination principle it sets out, it impliedly “affords 

a federal remedy against discrimination in private 

employment.” Johnson v. Railway Express Agency, Inc., 421 

U.S. 454, 460 (1975). The parties agree that “[a]n individual 

who establishes a cause of action under § 1981 is entitled to 

both equitable and legal relief, including compensatory and, 

under certain circumstances, punitive damages.” Id.

Second, while a plaintiff bringing a claim under section 

1981 “must initially identify an impaired ‘contractual 

relationship’ . . . under which the plaintiff has rights,” 

section 1981 “protects the would-be contractor along with 

those who already have made contracts.” Domino’s Pizza, 

Inc. v. McDonald, 546 U.S. 470, 476 (2006). In other words, 

section 1981 imposes liability when defendants have 

discriminated in a way that “prevented individuals who 

‘sought to enter into contractual relationships’ from doing 
6 RAJARAM V. META PLATFORMS, INC.

so.” Id. (quoting Runyon v. McCrary, 427 U.S. 160, 172 

(1976)) (emphasis omitted). 

The disputed question is whether section 1981 prohibits 

employers from discriminating against United States

citizens. The statutory text answers that question in the 

affirmative. An employer that discriminates against United 

States citizens gives one class of people—noncitizens, or

perhaps some subset of noncitizens—a greater right to make 

contracts than “white citizens.” If some noncitizens have a 

greater right to make contracts than “white citizens,” then it 

is not true that “[a]ll persons” have the “same right” to make 

contracts as “white citizens.” That is precisely what the 

literal text of the statute prohibits.

Meta insists that the observation “that the statute protects 

‘all persons’ . . . ducks the question presented by this 

appeal,” which is “not who can sue under Section 1981, but 

what plaintiffs can sue about.” In Meta’s view, the statute’s

“protections are limited to discrimination based on race or

alien status, not discrimination based on U.S. citizenship.” 

Meta’s reading appears to rest on the idea that “the same” 

should not be read literally. Rather, it argues, the statute does 

not prohibit employers from affording noncitizens greater 

rights than “white citizens” because the rights of “white 

citizens” are merely the floor to which the rights of “[a]ll 

persons” are raised. Thus, accepting Meta’s position would 

require us to accept that when Congress wrote “the same”

rights, it really meant rights “at least as great as” those of 

white citizens. 

The problem with Meta’s position is that “the same” 

means “the same.” It does not mean “at least as great as.” 

Meta does not suggest that “the same” meant something 

different when the statute was enacted, nor does it provide 
RAJARAM V. META PLATFORMS, INC. 7

“contextual evidence that Congress intended to depart from 

the ordinary meaning” of that phrase. Trim v. Reward Zone 

USA LLC, 76 F.4th 1157, 1161 (9th Cir. 2023). Because the 

words of section 1981 are unambiguous, “our ‘sole function’ 

is to enforce the statute according to its clear terms.” Id. at

1163 (quoting Lamie v. United States Tr., 540 U.S. 526, 534 

(2004)); see Connecticut Nat’l Bank v. Germain, 503 U.S. 

249, 253–54 (1992) (“We have stated time and again that 

courts must presume that a legislature says in a statute what 

it means and means in a statute what it says there.”). 

Meta suggests that “all persons” in section 1981 refers to 

the persons permitted to sue to obtain the same rights as 

white citizens. Under that reading, citizens are not protected

because they necessarily—indeed, tautologically—have the 

same rights as citizens. But the statute states a principle of 

parity between “all persons” and “citizens,” violated if some 

persons have either greater or lesser rights than citizens. If 

noncitizens have greater rights than citizens, then the 

statute’s guarantee is violated, and an aggrieved party—

here, an injured citizen—may invoke the cause of action 

recognized in Johnson to equalize the rights that “all 

persons” are afforded. 421 U.S. at 460.

Our reading of the statutory text is reinforced by the 

Supreme Court’s decision in McDonald v. Santa Fe Trail 

Transportation Co., 427 U.S. 273 (1976). In that case, white 

employees of a company were fired for theft, but a black 

employee charged with the same offense was not. Id. at 276. 

The fired employees sued under section 1981, alleging that 

they had been discriminated against on the basis of their 

race. Id. The Court held that they had stated a claim under 

section 1981 because an “examination of the language and 

history of § 1981 convinces us that § 1981 is applicable to 

racial discrimination in private employment against white 
8 RAJARAM V. META PLATFORMS, INC.

persons.” Id. at 286–87. In so holding, it rejected an 

argument similar to Meta’s, explaining that “we cannot 

accept the view that the terms of § 1981 exclude its 

application to racial discrimination against white persons.” 

Id. at 287. The Court noted that “the statute explicitly applies 

to ‘all persons,’ . . . including white persons.” Id. It 

explained that “[w]hile a mechanical reading of the phrase 

‘as is enjoyed by white citizens’ would seem to lend support 

to” the employer’s position, the Court had “previously 

described this phrase simply as emphasizing ‘the racial 

character of the rights being protected.’” Id. (quoting 

Georgia v. Rachel, 384 U.S. 780, 791 (1966)). It then added 

that, “[i]n any event, whatever ambiguity there may be in the 

language of § 1981 . . . is clarified by an examination of the 

legislative history,” which suggests that the statute 

“appl[ies] to ‘every race and color.’” Id. (quoting Cong. 

Globe, 39th Cong., 1st Sess. 211 (1866) (statement of Sen. 

Trumbull)).

This case, to be sure, concerns citizenship 

discrimination, not racial discrimination. The history of the 

relationship between the racial and citizenship aspects of 

section 1981 is therefore helpful in understanding why 

McDonald governs here. 

Section 1981 combines a portion of section 1 of the Civil 

Rights Act of 1866 (1866 Act), ch. 31, § 1, 14 Stat. 27, with 

section 16 of the Enforcement Act of 1870 (1870 Act), ch. 

114, § 16, 16 Stat. 140, 144. General Bldg. Contractors 

Ass’n v. Pennsylvania, 458 U.S. 375, 385 (1982). The 1866 

Act declared that “citizens, of every race and color, without 

regard to any previous condition of slavery or involuntary 

servitude . . . shall have the same right . . . to make and 

enforce contracts . . . as is enjoyed by white citizens.” 1866 

Act, § 1, 14 Stat. 27. “The principal object of the [1866] 
RAJARAM V. META PLATFORMS, INC. 9

legislation was to eradicate the Black Codes, laws enacted 

by Southern legislatures imposing a range of civil disabilities 

on [freed slaves].” General Bldg. Contractors Ass’n, 458 

U.S. at 386. 

Section 16 of the 1870 Act was an exercise of Congress’s 

power under the recently ratified Fourteenth Amendment in 

response to California legislation restricting the rights of 

Chinese immigrants. Saint Francis Coll. v. Al-Khazraji, 481 

U.S. 604, 613 (1987); Anderson v. Conboy, 156 F.3d 167, 

173 (2d Cir. 1998) (explaining that section 16 addressed “the 

plight of Chinese immigrants in California, who were 

burdened by state laws restricting their ability to work [and]

removing their right to give testimony at trial”). To that end, 

the 1870 Act extended the protections of the 1866 Act to “all 

persons” rather than “citizens” alone. 1870 Act, § 16, 16 

Stat. 144.

Although the type of discrimination alleged here is more 

closely related to the 1870 change from “all citizens” to “all 

persons” than to the racial language in the 1866 Act 

discussed in McDonald, see 427 U.S. at 289, the McDonald

Court’s reading of section 1981 governs this case. The 

statute guarantees “[a]ll persons . . . the same right . . . as is 

enjoyed by white citizens.” 42 U.S.C. § 1981(a). If white

persons as well as nonwhite persons can sue to enforce that 

guarantee—a principle the McDonald Court considered 

“explicitly” set out in the text—then so too can citizens as 

well as noncitizens. 427 U.S. at 287.

Of course, there is at least one non-textual reason to treat 

racial discrimination differently from citizenship 

discrimination: If the McDonald Court had read section 1981 

to prohibit discrimination against persons of some races but 

not others, it would have raised serious constitutional 
10 RAJARAM V. META PLATFORMS, INC.

questions. See Adarand Constructors, Inc. v. Peña, 515 U.S. 

200, 227 (1995) (“[A]ll racial classifications, imposed by 

whatever federal, state, or local governmental actor, must be 

analyzed by a reviewing court under strict scrutiny.”); 

Students for Fair Admissions, Inc. v. President & Fellows of 

Harvard Coll., 600 U.S. 181, 206 (2023). No such questions 

would arise from reading the statute to protect aliens but not 

citizens. See Korab v. Fink, 797 F.3d 572, 578 (9th Cir. 

2014) (“Congress may enact laws distinguishing between 

citizens and aliens so long as those laws are rationally related 

to a legitimate government interest.”).

But the McDonald Court nowhere discussed—or even 

hinted at—the principle of constitutional avoidance. More 

importantly, even if the Court was motivated by 

“constitutional concerns” posed “by one of the statute’s 

applications,” that “cannot justify giving the same . . . 

provision a different meaning” here simply because the 

current application does not raise the same constitutional 

concern. Clark v. Martinez, 543 U.S. 371, 380 (2005). A 

statute is not “a chameleon, its meaning subject to change 

depending on the presence or absence of constitutional 

concerns in each individual case.” Id. at 382. If one statutory 

construction “would raise . . . constitutional problems,” the 

other construction should prevail across all applications 

“whether or not those constitutional problems pertain to the 

particular litigant before the Court.” Id. at 380–81.

Looking beyond section 1981 itself, Meta argues that a 

neighboring provision shows that the statute does not 

prohibit discrimination against citizens. As noted above, 

although section 1981 has its ultimate origins in the 1866 

Act, the present text derives from the 1870 Act. See Runyon, 

427 U.S. at 168 n.8; General Bldg. Contractors Ass’n, 458 

U.S. at 385. Specifically, section 16 of the 1870 Act 
RAJARAM V. META PLATFORMS, INC. 11

provided that “all persons . . . shall have the same right . . .

to make and enforce contracts . . . as is enjoyed by white 

citizens, and shall be subject to like punishments, pains, 

penalties, taxes, licenses, and exactions of every kind, and 

none other.” 1870 Act § 16, 16 Stat. 144. That provision was 

followed by a criminal prohibition “designed to enforce 

section 16’s grant of substantive rights.” United States v. 

Otherson, 637 F.2d 1276, 1282 (9th Cir. 1980). Section 17 

of the 1870 Act, codified as amended at 18 U.S.C. § 242, 

made it an offense to subject “any inhabitant of any State or 

Territory to the deprivation of any right secured or protected 

by the last preceding section of this act, or to different 

punishment, pains, or penalties on account of such person 

being an alien, or by reason of his color or race, than is 

prescribed for the punishment of citizens.” 1870 Act § 17, 

16 Stat. 144. Pointing out that section 17 expressly bars 

discrimination based on alienage, Meta contends that section 

16—and by extension, section 1981—should similarly be 

read to bar discrimination based on alienage but not 

discrimination based on United States citizenship. See

Otherson, 637 F.2d at 1282 (noting that reading section 17 

as “coextensive with the grant of substantive rights [in 

section 16] best promotes the statutory purpose of protecting 

those rights”). 

The problem with that argument is that section 16, like 

section 1981 today, sets out two different guarantees of equal 

treatment: a guarantee of an equal right to make and enforce 

contracts, and a separate guarantee of being “subject to like 

punishment, pains, [and] penalties.” Although section 17 

mentions alienage, it does so only in connection with the 

second guarantee, barring the infliction of “different 

punishment, pains, or penalties on account of such person 

being an alien, or by reason of his color or race.” That 
12 RAJARAM V. META PLATFORMS, INC.

reading is confirmed by United States v. Classic, in which 

the Supreme Court held that “[t]he qualification as to 

alienage, color and race, is a parenthetical phrase in the 

clause penalizing different punishments ‘than are prescribed 

for citizens,’ and in the common use of language could refer 

only to the subject matter of the clause and not to that of the 

earlier one relating to the deprivation of rights to which it 

makes no reference in terms.” 313 U.S. 299, 326 (1941). 

Thus, even though the enforcement section should be read as 

coextensive with the grant of substantive rights, the alienage 

limitation informs our reading of only the second clause of 

section 1981(a), which refers to differences in punishment 

and is not at issue here. 

Meta also advances a series of non-textual arguments, 

but we find none persuasive. First, it invokes legislative 

history. But the statutory text is clear, and “[l]egislative 

history, for those who take it into account, is meant to clear 

up ambiguity, not create it.” Milner v. Department of Navy, 

562 U.S. 562, 574 (2011). In any event, nothing in the 

legislative history is inconsistent with reading the statute to 

reach claims brought by citizens. At most, as with claims of 

race discrimination by white persons, the legislative history 

suggests that Congress was not focused on such claims. Cf. 

McDonald, 427 U.S. at 289 (observing that “the immediate 

impetus for the [1866] bill was the necessity for further relief 

of the constitutionally emancipated former . . . slaves”). 

Even though claims by citizens were “not the principal evil 

Congress was concerned with” in enacting section 1981, “it 

is ultimately the provisions of our laws rather than the 

principal concerns of our legislators by which we are 

governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 

U.S. 75, 79 (1998). “‘[I]n the context of an unambiguous 

statutory text,’ whether a specific application was 
RAJARAM V. META PLATFORMS, INC. 13

anticipated by Congress ‘is irrelevant.’” Bostock v. Clayton 

Cnty., 590 U.S. 644, 677 (2020) (quoting Pennsylvania 

Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998)).

Second, Meta points to a subsequent enactment, the 

Immigration Reform and Control Act of 1986, which

prohibits “discriminat[ing] against any individual . . .

because of such individual’s citizenship status.” Pub. L. No. 

99-603, § 102, 100 Stat. 3374 (codified at 8 U.S.C. 

§ 1324b(a)(1)(B)). Meta says that in enacting that statute, 

“Congress recognized that ‘[n]o Federal law now prohibits 

discrimination on the basis of citizenship status.’”

The quoted language is from a statement of minority 

views accompanying a report of the House Judiciary 

Committee. H.R. Rep. No. 682, 99th Cong., 2d Sess., pt. 2, 

at 46 (1986). We agree with the District of Columbia Circuit 

that “[p]ost-enactment legislative history—perhaps better 

referred to as ‘legislative future’—becomes of absolutely no 

significance when the subsequent Congress (or more 

precisely, a committee of one House),” and here, only a 

minority of the committee, “takes on the role of a court and 

in its reports asserts the meaning of a prior statute.” United 

States ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 

870, 878–79 (D.C. Cir. 1999).

Moreover, even on Meta’s interpretation of 

section 1981, the minority statement accompanying the 

committee report did not accurately describe the law in 1986. 

The quoted sentence also notes that “under EEOC guidelines 

citizenship requirements are already deemed violative of 

Title VII when they have the purpose or effect of 

discriminating against an individual on the basis of national 

origin.” H.R. Rep. No. 682, pt. 2, at 46. That language 

suggests that the committee minority used the phrase 
14 RAJARAM V. META PLATFORMS, INC.

“discrimination on the basis of citizenship status” to refer 

both to discrimination based on the status of being a citizen 

and also to discrimination based on the status of being a 

noncitizen. Meta does not dispute that section 1981 prohibits 

discrimination against noncitizens. See Takahashi v. Fish & 

Game Comm’n, 334 U.S. 410, 419–20 (1948); Sagana v. 

Tenorio, 384 F.3d 731, 739 (9th Cir. 2004). Thus, contrary 

to the statement in the report, there has long been a 

prohibition in section 1981 against at least some forms of 

discrimination based on citizenship status.

Ultimately, what Congress may have believed about the 

state of the law in 1986 is irrelevant to the question before 

us. “[L]ater enacted laws . . . do not declare the meaning of 

earlier law.” Almendarez-Torres v. United States, 523 U.S. 

224, 237 (1998); see also Wright v. West, 505 U.S. 277, 295 

n.9 (1992).

Third, Meta argues that our interpretation would lead to 

nonsensical results if extended to other antidiscrimination 

statutes. Meta observes that “[i]f Congress or a state 

legislature wants to protect only the elderly, we don’t assume 

it also meant to protect young people.” It is of course true 

that the Age Discrimination in Employment Act of 1967,

Pub. L. No. 90-202, 81 Stat. 602, which prohibits 

“discriminat[ion] . . . because of [an] individual’s age,” does 

not prohibit discrimination against the young. 29 U.S.C. 

§ 623(a)(1). But the Supreme Court’s decision establishing 

that proposition illustrates the flaw in Meta’s argument. In 

General Dynamics Land Systems, Inc. v. Cline, employees

between the ages of 40 and 50, who were covered under the 

statute, see 29 U.S.C. § 631(a), alleged that their employer

engaged in age discrimination when it eliminated a 

retirement benefits program for workers under 50 while 

retaining the program for older workers. 540 U.S. 581, 584–
RAJARAM V. META PLATFORMS, INC. 15

85 (2004). The Court noted that the word “age” can carry 

two different meanings—as, for example, in statements such 

as “Age can be shown by a driver’s license,” and “Age has 

left him a shut-in”—and it held that the “context shows that 

‘age’ means ‘old age’ when teamed with ‘discrimination.’” 

Id. at 596. Cline therefore does not establish a general 

principle that antidiscrimination statutes should be read to 

apply asymmetrically, any more than our decision today 

rests on what Meta calls a general “principle of ‘reverse 

discrimination.’” Rather, as in Cline, we interpret the statute 

before us according to the most natural meaning of its text.

Finally, we acknowledge that our conclusion differs 

from that of the only other court of appeals to consider this 

issue. In Chaiffetz v. Robertson Research Holding, Ltd., the 

Fifth Circuit rejected a section 1981 claim asserted by an 

American employee of a British company who alleged that 

his employer failed to promote him because of his 

citizenship. 798 F.2d 731, 732 (5th Cir. 1986). The court 

rejected the plaintiff’s reliance on McDonald, reasoning that 

it “does not follow” that because section 1981 protects white 

persons from racial discrimination, it also protects citizens 

from citizenship discrimination. Id. at 735. “Discrimination 

against whites is racial discrimination,” the court stated, “but 

(in America) discrimination against Americans can never be 

discrimination based on alienage.” Id. (emphasis omitted). 

Given everything we have said so far, the problem with 

that reasoning should be apparent. Discrimination based on 

alienage is indeed different from racial discrimination, but it 

is not different in any way that is relevant to the text of 

section 1981. Nowhere does the statute “use the term ‘alien’ 

to describe those to whom it extends protection.” Jimenez v. 

Servicios Agricolas Mex, Inc., 742 F. Supp. 2d 1078, 1085 

(D. Ariz. 2010). Instead, it guarantees that “[a]ll persons . . . 
16 RAJARAM V. META PLATFORMS, INC.

shall have the same right . . . to make and enforce contracts 

. . . as is enjoyed by white citizens.” Rajaram alleges that 

Meta has violated that guarantee by giving noncitizens a 

greater right than citizens to contract for employment. He 

has therefore stated a claim under section 1981.

REVERSED and REMANDED.

VANDYKE, Circuit Judge, dissenting:

This is a hard case. The majority seems to think 

otherwise because it claims the text of Section 1981 

“clear[ly]” protects citizens from discrimination on the basis 

of citizenship. That conclusion is appealing, but not because 

of textual clarity. It’s appealing because it’s natural to think 

that if Congress protected noncitizens then surely it must 

have protected citizens too. 

But the text just says that Section 1981 protects “[a]ll 

persons’” enjoyment of the “same right[s]” as “white 

citizens.” This could be read as a “leveling-up” 

requirement—everyone gets the same rights established by 

some benchmark (here, “white citizens”). Under that 

reading, since citizens definitionally always have the same 

rights as citizens, they are not protected by the statute. On 

the other hand, I suppose the statute could be read, as the 

majority reads it, as a strict equalizing statute—everyone 

gets the same rights, period. If someone has more rights than 

citizens, then citizens can sue to get equalized. Of course, if 

that is what Congress meant, then one wonders why the text 

includes “as is enjoyed by white citizens” at all, since it 

seems entirely unnecessary. Just say everybody gets the 

same rights.
RAJARAM V. META PLATFORMS, INC. 17

In justifying its supposedly clear reading of the text, the 

majority relies on McDonald v. Santa Fe Trail 

Transportation Co., in which the Supreme Court concluded 

that defining the rights as those “enjoyed by white citizens” 

did not preclude whites from protection against racial 

discrimination. 427 U.S. 273, 286–87 (1976). But the 

Supreme Court’s reasoning in McDonald is nothing like the 

majority’s “textual” rationale here. That’s because, as my 

colleague Judge Berzon candidly acknowledged during oral 

argument, McDonald was written “when the notion that one 

has to stick to the language and nothing else was not 

prevalent.” Far from supporting the majority’s conclusion 

today that the text is clear, the Supreme Court in McDonald

barely addressed Section 1981’s text, acknowledged that a 

“mechanical reading” of it cut the other way, and then 

decided the case based on an extensive review of legislative 

history about race—legislative history that has nothing to do 

with the citizenship question before us. So it is more than a 

bit strange to rely on McDonald as somehow bolstering the 

majority’s terse yet confident textual analysis.

In reality, Section 1981’s text is not as clear as the 

majority makes it out to be, and McDonald does nothing to 

resolve its ambiguity. Applying what I think is the better 

reading of an admittedly ambiguous text, and informed by 

the statutory development of Section 1981, I conclude that 

the statute does not protect citizens from discrimination on 

the basis of citizenship. In concluding otherwise, the 

majority unnecessarily creates a circuit split with the Fifth 

Circuit. I respectfully dissent.
18 RAJARAM V. META PLATFORMS, INC.

I. This is a harder case than the majority makes it 

out to be.

The majority’s plain text reasoning is tempting. The text 

of the statute reads that “[a]ll persons ... shall have the same 

right[s] ... as [are] enjoyed by white citizens.” 42 U.S.C. 

§ 1981(a). The statute’s text sets a standard that “[a]ll

persons’” rights are pegged to. So maybe everyone can have 

the “same right[s]”—no less, but no more either—as those 

enjoyed by “white citizens.”

Our first clue that this interpretation may not be the only, 

or even the best, reading of Section 1981 comes from the 

Supreme Court’s decision in McDonald. In McDonald, the 

Court determined that Section 1981 protects not only 

nonwhites’ ability to enjoy the same rights as white citizens 

as the text plainly requires, but it also protects white persons 

from racial discrimination. 427 U.S. at 286–87. In reaching 

that conclusion, the Court observed, like the majority does 

here, that the “statute explicitly applies to ‘all persons,’ 

including white persons.” Id. at 287 (cleaned up). 

The scope of the people protected, therefore, was not 

limited to nonwhites. But the scope of the class protected 

does not control what rights of that class are protected. “All 

persons” might fall within the scope of Section 1981, but that 

doesn’t tell us what rights the statute guarantees for all those 

people. Nor does the phrase “same right[s].” Indeed, if 

“[a]ll persons” and “same right” were the determinative 

phrases as to the scope of the rights protected, then Section 

1981 could be read to prohibit discrimination based on any 

characteristic—gender, religion, disability, age, political 

affiliation, etcetera. Nobody thinks that, including this court. 

See Sagana v. Tenorio, 384 F.3d 731, 738 (9th Cir. 2004).
RAJARAM V. META PLATFORMS, INC. 19

What seems to do the work of defining the rights 

protected by Section 1981 is the phrase “as is enjoyed by 

white citizens.” The Court in McDonald agreed, focusing 

the weight of its analysis on the import of this phrase. And 

this phrase is much more ambiguous than the majority here 

would like to admit. Contrary to the majority, one possible 

reading of the phrase “as is enjoyed by white citizens” is that 

it textually defines the rights guaranteed to “[a]ll persons” to 

be those enjoyed by white citizens. If this is correct, then 

“white citizens” are not protected because they, by 

definition, always enjoy the same rights as white citizens. 

So even though they might generally fall within the scope of 

the class protected by the statute—all people—they could 

never be disadvantaged because their rights would never not

be the same rights as enjoyed by ... themselves. But don’t 

just take my word for it. The Court in McDonald

acknowledged that “a mechanical reading of the phrase ‘as 

is enjoyed by white citizens’ would seem to lend support” to 

the interpretation that the statute “unambiguously limits 

itself to the protection of nonwhite persons against racial 

discrimination.” 427 U.S. at 286–87.

But while the Court acknowledged that the text of 

Section 1981 weighed against protecting whites, it 

ultimately concluded that whites are protected by Section 

1981. It did so by privileging legislative history over what 

it brusquely conceded was the contrary reading of the text. 

The Court’s reasoning in McDonald was almost entirely 

governed by legislative history—the Court’s textual analysis 

spanned three sentences, followed by nearly ten pages on 

legislative history. Id. at 287–296. The Court extensively 

examined the legislative floor debates on the bill and the 

amendments it underwent while passing between the 

chambers. Id. For example, Senator Trumbull, who 
20 RAJARAM V. META PLATFORMS, INC.

introduced the bill, stated during debate that “[t]his bill 

applies to white men as well as black men.” Id. at 290. And 

speaking directly to Representative Wilson’s addition of the 

phrase “as is enjoyed by white citizens” as the bill passed 

through the House, the Court concluded that the structure of 

the bill as it then stood and Wilson’s own statements made 

clear that this was merely a clarifying amendment to 

“emphasize the racial character of the rights being 

protected.” Id. at 293 (citation omitted). Relying on the 

“cumulative evidence of congressional intent,” the Court 

concluded that “the Act was meant, by its broad terms, to 

proscribe discrimination in the making or enforcement of 

contracts against, or in favor of, any race.” Id. at 295. 

McDonald, therefore, is not a helpful case for the 

majority. First, it makes clear that, contrary to the majority’s 

short textual analysis, nothing in the text of Section 1981 

“clearly” supports the majority’s interpretation—indeed, a 

“mechanical reading” of the text “would seem to lend 

support to [the] reading of the statute” that “white citizens” 

are not protected. Id. at 287. And second, McDonald’s 

eschewing of textual analysis for a long march through 

legislative history makes it a most unlikely candidate to 

support the majority’s purportedly “clear” textual 

conclusion.

Undeterred, the majority takes McDonald’s conclusion 

that “white persons as well as nonwhite persons can sue to 

enforce [the statute’s] guarantee” and extrapolates that “so 

too can citizens as well as noncitizens.” The majority wants 

to rely on McDonald’s conclusion while ignoring 

McDonald’s use of legislative history. But McDonald’s 

holding cannot be divorced from its reasoning. The majority 

can’t have it both ways: it can’t pretend it’s just following 

the “clear” text of Section 1981 while spending more time 
RAJARAM V. META PLATFORMS, INC. 21

wrapping itself in McDonald’s atextual result than fairly 

analyzing the statute’s textual ambiguity. 

Even the legislative history that drove the decision in 

McDonald is not helpful in this case. If such an analysis 

were appropriate, the same legislative history that supported 

reading the statute as prohibiting discrimination against 

whites does not support reading it to forbid discrimination 

against citizens. As the Court explained in McDonald, the 

legislative history of the statute was focused on its racial 

aspect. Senator Trumbull, in advocating for the passage of 

the bill in the Senate, argued that it would “guaranty to every 

person of every color the same civil rights.” Cong. Globe, 

39th Cong. 1st Sess. 599–600 (1866). Representative 

Wilson, after adding the phrase “as is enjoyed by white 

citizens” in an amendment, id. at 1115, similarly argued on 

the congressional floor that the purpose of the bill was to 

ensure that “[o]ne race shall not be more favored [with 

respect to the specified rights] than another,” id. at 1117. 

The Congressional Globe is replete with such references to 

protections based on race, yet there is seemingly nothing in 

the legislative history to indicate that all people were 

intended to be protected from discrimination on citizenship 

grounds. Nor does the majority identify any evidence that 

the purpose of the bill was to defend against discrimination 

on the basis of citizenship.

And as the majority acknowledges, there is another 

reason “to treat racial discrimination differently from 

citizenship discrimination” in this context. Reading Section 

1981 to prohibit discrimination against persons of some 

races, but not others, would implicate serious constitutional 

concerns. See Adarand Constructors, Inc. v. Peña, 515 U.S. 

200, 227 (1995) (holding that “all racial classifications, 

imposed by whatever federal, state, or local governmental 
22 RAJARAM V. META PLATFORMS, INC.

actor, must be analyzed by a reviewing court under strict 

scrutiny”). But providing protection for aliens, but not 

citizens, would not. See Korab v. Fink, 797 F.3d 572, 578 

(9th Cir. 2014) (“Congress may enact laws distinguishing 

between citizens and aliens so long as those laws are 

rationally related to a legitimate government interest.”).

The majority minimizes this difference by arguing that 

even if the constitutional concerns that may have driven the 

interpretation of the statute in McDonald are not present 

here, we need to interpret the same statutory provision 

consistently. But this case is interpreting a different term 

than McDonald. McDonald construed the term “white,” and 

no one is suggesting we reject that construction. This case 

asks us how we should read the neighboring word “citizen.”

At the end of the day, the text is just not unambiguous. 

If anything, there is better textual support for the reading the 

majority rejects: that discrimination because of citizenship is 

not covered by Section 1981 because citizens inherently 

possess the rights enjoyed by citizens, even when 

noncitizens are preferenced over them. Treating the term 

“citizen” like McDonald treated the word “white” suggests 

that this might not be the case. But McDonald applied a 

nontextual analysis, and its extended analysis of Section 

1981’s legislative history cannot be lifted uncritically from 

the racial context and simply transplanted to the citizenship 

one. Because McDonald’s anachronistic analysis is not, 

even on its own terms, helpful to the interpretive question 

presented in this case, we must unfortunately address that 

question from scratch, which I turn to now.

II. Section 1981 does not protect against citizenship 

discrimination.

Starting with the text, Section 1981(a) provides, in full:
RAJARAM V. META PLATFORMS, INC. 23

All persons within the jurisdiction of the 

United States shall have the same right in 

every State and Territory to make and enforce 

contracts, to sue, be parties, give evidence, 

and to the full and equal benefit of all laws 

and proceedings for the security of persons 

and property as is enjoyed by white citizens, 

and shall be subject to like punishment, pains, 

penalties, taxes, licenses, and exactions of 

every kind, and to no other.

42 U.S.C. § 1981(a). According to the text, “[a]ll persons” 

are ensured the “same right[s] ... as [are] enjoyed by white 

citizens.” Id. As described above, one obvious reading is 

that the statute affords all persons, regardless of race or 

alienage, at least the same rights as enjoyed by white 

citizens, and if another group is treated below that standard, 

the statute makes up the difference. But the text of the statute 

does not explicitly say that all persons can be afforded no 

more than those rights “enjoyed by white citizens.” Id. 

Without any textual basis for leveling noncitizens down, the 

claims brought by Rajaram—an American citizen—fall 

outside of the statutory text.

Rajaram contends that Meta is violating Section 1981 

because its hiring practices favor noncitizens over citizens. 

He does not argue that he has been denied the rights enjoyed 

by white citizens. Instead, he relies on McDonald’s 

conclusion that “white citizens” includes nonwhites to argue 

that “citizens” means “people of any citizenship status”—

whether American or otherwise. Thus, he asserts that under 

Section 1981 noncitizens cannot be afforded more rights 

than those afforded to American citizens. But the text of 

Section 1981 does not guarantee citizens the same rights as 
24 RAJARAM V. META PLATFORMS, INC.

enjoyed by noncitizens. It guarantees both citizens and 

noncitizens the same rights as those “enjoyed by white 

citizens.” Id. (emphasis added). 

It is true that the class of people protected by Section 

1981 is broad, extending to “[a]ll persons within the 

jurisdiction of the United States.” Id. But while the class is 

broad, we have previously held that the protection provided

to that class is limited. It does not reach “discrimination on 

the basis of gender or religion, disability, age, or political 

affiliation.” Sagana, 384 F.3d at 738 (internal citations 

omitted). And neither does it protect against discrimination 

on the basis of citizenship. Instead, it guarantees “[a]ll 

persons” only the rights “enjoyed by white citizens.” 

Rajaram does not allege that he has not been treated as well 

as a citizen, but only that he has not been treated as well as a 

noncitizen. On this reading of the text, therefore, the 

disadvantage that he alleges is not one that the statute 

addresses.

The statutory evolution of Section 1981 confirms this 

interpretation of the text. Originating in Section 1 of the 

Civil Rights Act of 1866, see Civil Rights Act of 1866, ch. 

31, Sec. 1, 14 Stat. 27, 27 (codified as amended at 42 U.S.C. 

§ 1981(a)), the language from which Section 1981 comes did 

not originally protect aliens at all, and prohibited only racial 

discrimination. Section 1 provided that “all ... citizens” 

shall have the same rights that “white citizens” enjoy. Sec. 

1, 14 Stat. at 27; see also Gen. Bldg. Contractors Ass’n v. 

Pennsylvania, 458 U.S. 375, 384 (1982). In Section 16 of 

the Enforcement Act of 1870, Congress extended Section 1’s 

prohibition by replacing “all ... citizens” with “all persons.” 

Enforcement Act of 1870, ch. 114, Sec. 16, 16 Stat. 140, 144 

(codified as amended at Sec. 1981(a)). That amendment 

granted noncitizens the same statutory rights as citizens, 
RAJARAM V. META PLATFORMS, INC. 25

thereby adding a ban on alienage discrimination. See 

Sagana, 384 F.3d at 738 (“The significance we attach to the 

drafters’ changing ‘all citizens’ to ‘all persons’ to hold that 

aliens fall under the statute’s protections, also compels the 

conclusion that [Section] 1981 protects against 

discrimination on the basis of alienage.”). As that revision 

demonstrates, Congress was attentive to the distinction 

between “citizens” and noncitizen “persons.” Congress 

made clear that the protections of the statute were not limited 

to “citizens”—but it said nothing about whether the law 

applied to discrimination purely on the basis of citizenship. 

Section 16 “contain[ed] essentially the language that 

now appears in [Section] 1981.” Gen. Bldg. Contractors, 

458 U.S. at 385. Like Section 1981, Section 16 provided 

that “all persons ... shall have the same right ... to make and 

enforce contracts ... as is enjoyed by white citizens, and 

shall be subject to like punishments, pains, penalties, taxes, 

licenses, and exactions of every kind.” Sec. 16, 16 Stat. at 

144. In the adjacent Section 17, Congress imposed criminal 

sanctions that illustrate the scope of Section 16. Section 17 

penalized any person who, under color of law, subjected 

“any inhabitant of any State or Territory to the deprivation 

of any right secured or protected by the last preceding 

section of this act, or to different punishment, pains, or 

penalties on account of such person being an alien, or by 

reason of his color or race, than is prescribed for the 

punishment of citizens.” Sec. 17, 16 Stat. at 144. The 

sanction for the deprivation of any right in “the last 

preceding section” refers expressly to those rights in Section 

16, and the sanction for “different punishment, pains, or 

penalties” corresponds to the “like punishments, pains, 

penalties, taxes, licenses, and exactions” that Section 16 

requires. Secs. 16–17, 16 Stat. at 144. Thus, “Section 17 by 
26 RAJARAM V. META PLATFORMS, INC.

its plain language enforced the specific rights enumerated in 

Section 16.” Anderson v. Conboy, 156 F.3d 167, 175 (2d 

Cir. 1998); see also United States v. Otherson, 637 F.2d 

1276, 1282 (9th Cir. 1980) (“Section 16 grants these rights, 

and section 17 enforces that grant by criminalizing their 

deprivation.”). 

Section 16 granted the same right “as is enjoyed by white 

citizens,” and Section 17 penalized discrimination that 

resulted from not being “white citizens.” That meant 

discrimination against aliens: “different punishment, pains, 

or penalties on account of such person being an alien,” as 

compared to the punishment “prescribed for ... citizens.” 

Sec. 17, 16 Stat. at 144. Like Section 16 and Section 1981, 

Section 17 identified “citizens” as the group against which 

to measure the treatment of those it protects. 

The majority concludes that Section 17’s reference to 

alienage in the second part of Section 17, barring the 

infliction of different punishment, does not apply to its first 

guarantee of the rights in Section 16. But it is not just the 

explicit reference to “alien[s]” in Section 17 that informs the 

scope of the right protected in Section 16. Instead, it is the 

consistent characterization of the protected rights as those of 

“citizens.” Section 16 states that all people are entitled to 

the same rights as white citizens—this means that even 

noncitizens must enjoy the rights of citizens. Section 17 

similarly protects aliens from receiving different 

punishments than citizens on account of their status as aliens. 

Together, Sections 16 and 17 consistently ensure that 

noncitizens will not be discriminated against in favor of 

citizens. In both cases, it is only noncitizens who can be 

harmed, because citizens definitionally enjoy the rights of 

citizenship. So while the legislative history relied on by the 

Court in McDonald suggests that the statute’s protection is 
RAJARAM V. META PLATFORMS, INC. 27

not limited to “nonwhites,” 427 U.S. at 295, the historical 

development of Section 1981 corroborates the better textual 

reading that alienage, not citizenship, is protected.

III.The majority’s opinion creates an unnecessary 

circuit split.

Finally, as the majority acknowledges, its conclusion is 

at odds with the Fifth Circuit’s decision in Chaiffetz v. 

Robertson Research Holding, Ltd., 798 F.2d 731 (5th Cir. 

1986)—a case addressing the exact same issue—and thus 

creates a circuit split. In Chaiffetz, the Fifth Circuit held that 

the district court had “correctly concluded that [Section 

1981] is inapplicable” because it “does not encompass 

discrimination based solely on national origin.” Id. at 735 

(quoting Bullard v. Omi Georgia, Inc., 640 F.2d 632, 634 

(5th Cir. 1981)). In doing so, the Fifth Circuit explicitly 

rejected the argument raised by Rajaram that Section 1981 

protects against “reverse discrimination on the basis of 

alienage.” Id. (internal quotation marks omitted).

As the majority does in this case, the plaintiff in Chaiffetz

attempted to rely on McDonald to argue that “given the 

Supreme Court’s interpretation of the applicability of 

[Section] 1981 to reverse discrimination on the basis of race, 

it is axiomatic that similar reverse discrimination against 

American citizens in favor of non-citizens is also 

proscribed.” Id. (internal quotation marks omitted). This, 

according to the Fifth Circuit, “does not follow.” Id. Rather, 

“[d]iscrimination against whites is racial discrimination, but 

(in America) discrimination against Americans can never be 

discrimination based on alienage. It can only be 

discrimination based on national origin,” and such 

discrimination is not prohibited “under [Section] 1981.” Id.
28 RAJARAM V. META PLATFORMS, INC.

(emphasis in original). The majority unnecessarily creates a 

circuit split where one should not exist.

* * *

This is not an easy interpretive case, and I personally like 

the majority’s conclusion better than mine. It’s only natural 

to think that this sort of discrimination protection should be 

reciprocal—if noncitizens can’t be discriminated against in 

favor of citizens, then surely citizens shouldn’t be 

disadvantaged in favor of noncitizens. This reading is 

particularly appealing today, when conditions create more 

incentives to discriminate against citizens. Illegal border 

crossings have increased year over year since 2021, with 

almost two million encounters reported during the first half 

of this fiscal year alone. See Nationwide Encounters, U.S. 

Customs and Border Protection, https://www.cbp.gov/

newsroom/stats/nationwide-encounters. Given that it is 

easier to pay such noncitizens lower wages, it’s easy enough 

to see how this creates growing economic pressure to favor 

noncitizens over citizens. A statute that protects against this 

sort of discrimination may be what this country needs, but it 

isn’t what Congress gave us in Section 1981. And it’s not 

my role to transform this statute into what I wish it was. I 

therefore reluctantly dissent.