By Lori Phillips
Can you refuse to hire an authorized worker – even a U.S. citizen – because once upon a time he used a false Social Security number? In Guerrero v. California Department of Corrections & Rehabilitation, No. C 13-05671 WHA (N.D. Cal. May 7, 2014), the court said, “Maybe not.” The plaintiff came to the U.S. at age 11 and began working at age 15 with a made-up social security number. At about age 17, he acquired a legitimate Individual Taxpayer Identification Number from the IRS. At age 27, he became a permanent resident and acquired a legitimate SSN, and at age 30, he became a U.S. citizen. When the plaintiff applied for a job with defendant, he admitted on the application that he had previously used an invented SSN. The defendant told plaintiff that he was ineligible for the job because of dishonesty. Among other claims, the plaintiff alleged a disparate impact claim in violation of Title VII, based on his ethnicity. The defendant argued that the court should dismiss the plaintiff’s claim on purely legal grounds – the plaintiff sought relief based only on immigration status, not national origin – but the court disagreed. The plaintiff had expressly alleged his status as a Latino.
This case may fill employers with dread of being liable for disparate impact violations, but the plaintiff might still lose at the summary judgment stage when evidence can be considered. Still, this is another case of a blanket policy, applied in unusual circumstances, with predictable results – a lawsuit.