Title VII Disparate Impact Case Proceeds Based on Past Use of False Social Security Number

The federal district court for Northern California ruled recently a national-origin-based disparate impact claim could be pursued under Title VII of the 1964 Civil Rights Act. Guerrero v. Cal. Dep’t of Corr. & Rehab. (N.D. Cal. 2014).

The court denied the California Department of Corrections & Rehabilitation’s (CDCR) motion to dismiss Guerrero’s claim. Guerrero alleged that the CDCR’s blanket disqualification of applicants who had used false social security numbers in the past unfairly discriminated against persons of Hispanic national origin.

Guerrero’s parents brought him to the United States as a child, and he started working at age 15 unknowingly using an invented social security number. He learned of his undocumented status and false social security number when he was 17, and promptly stopped using the false number. At that time, Guerrero obtained an individual tax identification number to pay taxes until his status was legalized. He became a U.S. citizen in 2007.

He applied for a job as a correctional officer with the CDCR in 2011 and in May 2013. Both times, he passed the required exams, but was rejected because of his prior use of the false social security number. The CDCR said his use of the false number showed he “lack[ed] honesty, integrity, and good judgment.” The CDCR reached this conclusion despite Guerrero’s disclosure of the circumstances associated with his use of the false number.

By allowing the case to go forward, the court indicated a willingness to consider whether a rule prohibiting hiring individuals because of prior use of a false social security number could have a disparate impact on the protected class of Latinos.

The Legal Aid Center, which represented Guerrero, said this case is important because formerly undocumented individuals who obtain legal authorization to work should not be kept from doing so by employers seeking to disqualify them because of ethnic or national origin. Individuals who might be impacted by this case are those who came to the U.S. undocumented as children and have since obtained work authorization and valid social security numbers.

Employers who use blanket disqualifications based on prior use of false social security numbers or similar markers of undocumented employment need to be aware of the case law that has arisen from employers’ blanket use of a prior criminal convictions, which EEOC has determined will statistically disqualify minority applicants more frequently than whites and thus can be the basis for a disparate impact claim.