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Court Permits National Origin Disparate Impact Claim Based On Use Of False Social Security Numbers By Undocumented Aliens

Employees’ use of false Social Security numbers remains an endemic problem for many employers. In a recent case, plaintiff, who is Hispanic, was twice denied a job after admitting that he had previously used a Social Security number other than the one he was using on the employment background questionnaire. The employer denied his application on the grounds that plaintiff’s knowing use of a false Social Security number meant that he did not satisfy the general qualifications of integrity, honesty, and good judgment.  Plaintiff sued for national origin discrimination, arguing that he had been discriminated against because the employer’s disqualification of applicants who have previously used false Social Security numbers has an adverse and disproportionate impact on national origin minorities such as Latinos. The employer moved to dismiss the action, arguing that the claim was really based on plaintiff’s former status as an undocumented worker, which is not a protected category, rather than his national origin, which is protected.


A federal trial court in California denied the employer’s motion in Guerrero v. California Department of Correction & Rehabilitation, 2014 U.S. Dist. LEXIS 63282 (N.D. Cal. 2014).  The court agreed with plaintiff’s previously unrecognized theory that the employer’s facially neutral policy adversely impacted Latinos as a class, and therefore plaintiff had stated a plausible claim of national origin disparate impact discrimination under Title VII.  Although this was only a preliminary ruling on a motion to dismiss the complaint, the ruling is significant because it (1) accepts the likelihood that Latinos have more immigration status issues than other groups, and (2) reiterates that, in the abstract, any neutral policy that screens out applicants can form the basis of a disparate impact claim if it has a disproportionately adverse impact on a category of individuals within one of the protected classes under Title VII.