By now, most employers have faced situations in which they have discovered an employee has used a false Social Security number. Such discovery usually results in an employee discharge or resignation. A lawsuit filed on December 9, 2013, in the Northern District of California on behalf of an unsuccessful Latino applicant illustrates a unique twist to circumstances where individuals have used fake Social Security numbers in their past.

Coming to America and using a false SSN

Victor Guerrero unlawfully entered the United States with his family in 1990 when he was 11 years old. Four years later, he started working to help support his family and was provided a false Social Security number. Guerrero did not learn he was undocumented and the Social Security number he was using was fake until he was 17 years old. He continued to use the Social Security number to obtain work until 2007, when he became a legal, permanent resident of the United States and received his own Social Security number. In 2010, Guerrero became a U.S. citizen.

Application and rejection

Guerrero lived in Stockton, California, and was attending the San Joaquin Delta College, aiming to obtain an associate’s degree in criminal justice and a certificate of correctional science. He applied for a job as a correctional officer with the California Department of Corrections and Rehabilitation. The application process included a written examination, a physical agility test, and a background investigation.

The background investigation included a questionnaire that asked applicants whether they “had or used a Social Security number other than the one used on this questionnaire?” Guerrero truthfully answered the question “yes” and explained in an addendum the circumstances of his illegal entry into the United States, his use of a fake Social Security number, and the fact he eventually obtained his own, legal Social Security number and became a U.S. citizen.

The next step of the application process required Guerrero to take part in the Corrections Department’s pre-investigatory interview. In this interview, Guerrero again explained his circumstances and history.

State Personnel Board Rule 172 requires that all candidates for the Corrections Department “possess the general qualifications of integrity, honesty, [and] good judgment.” The Corrections Department informed Guerrero he was ineligible as a candidate for the correctional officer position because his earlier actions involving the use of a false Social Security number demonstrated a lack of honesty, integrity and good judgment, and thus violated Personnel Board Rule 172.

Guerrero appealed the Department of Corrections’ refusal to treat him as an eligible candidate to the State Personnel Board, but he was not afforded a hearing. Noting that “Peace Officers hold a special position of trust and authority and, as such, they are held to a higher standard of conduct of other employees …..”, the State Personnel Board ruled the Corrections Department was right when it denied Guerrero further consideration for employment.

Approximately two years later, Guerrero reapplied for a position as a correctional officer. He completed the same background questionnaire in the same fashion and again participated in the Corrections Department’s pre-investigatory interview. For a second time, the Corrections Department informed Guerrero he was not eligible for a position as a correctional officer.

Guerrero’s appeal and his lawsuit

First, Guerrero filed a charge of employment discrimination with the U.S. Equal Employment Opportunity Commission. Next, he filed a lawsuit against the Corrections Department and the State Personnel Board claiming, among other things, that the defendants violated Title VII of the Civil Rights Act of 1964. More specifically, Guerrero’s lawsuit claims that the Corrections Department’s policy of refusing to hire job candidates based upon previous use of false Social Security numbers has a disparate impact on Latinos, inasmuch as immigrant workers frequently use false Social Security numbers. The lawsuit claims the policy amounts to national origin discrimination in violation of Title VII.

The issues in this lawsuit present an interesting clash between employment discrimination laws and employers’ interest and right to ensure employees are lawfully permitted to work in the United States. It’s too early to tell what will happen with this novel theory, but we will monitor the case’s progress and keep you advised.

Guerrero v. California Department of Corrections and Rehabilitation, 3:13-CV-05671-NC (N.D. Cal. 12/9/13)