California is back with another noteworthy decision. The case is an excellent reminder to employers, that when considering the criminal history of applicants, they must consider the nature of the offense and how long ago it was in relation to the desired position.
The case presents the Plaintiff, a Mexican-born man who utilized a false social security number from the age of 11 to gain employment. At age 17, the Plaintiff applied to change his immigration status and was issued an Individual Taxpayer Identification Number (ITIN). Though the Plaintiff was issued the ITIN, his employer already had his false SSN on file, and the Plaintiff continued to use that SSN with his employer.
10 years after the application was made, the Plaintiff become a lawful permanent resident and received a valid social security number. He became a United States citizen at the age of 34.
Shortly after he become a citizen, Plaintiff applied to be a corrections officer with the California Department of Corrections and Rehabilitation (CDCR). Applicants to the CDCR are required to undergo a thorough background check to determine if the applicant has good moral character. Applicants are required to answer many questions as part of this investigation.
Quest 75 of the investigation asks "Have you ever had or used a social security number other than the one you used on this questionnaire?", to which Plaintiff answered "Yes" and provided a supplemental answer explaining the circumstances.
In January 2012, the CDCR sent Plaintiff a rejection letter, stating:
"The fact that you committed identity theft of eight years but [sic] utilizing a social security number of a United States citizen causing unknown ramifications for that person by having income reported under their number that they were unaware of reflects that you are not suitable to assume the duties and responsibilities of a peace officer. The result of the background investigation revealed that you fail to possess these qualifications. You chose to use an authorized social security number even though had [sic] taxpayers [sic] ID number, shows a willful disregard for the law. This 8 year act of unlawfulness shows a lack of honesty, integrity, and good judgement."
Plaintiff appealed the decision stating he was discriminated against because he was a naturalized US citizen and not a US-born citizen. The appeal was denied without an evidentiary hearing before an administrative law judge to determine the merits of Plaintiff's discrimination claim.
Plaintiff applied to the CDCR again in 2013 and was again rejected. His appeal of that rejection is currently pending.
The court shows that there 23,292 applicants for the position of corrections officer from 2009 - 2014. 42 of the applicants answered "Yes" to Question 75; 33 were Latino and 9 were non-Latino. Of the 33 Latino applicants, the CDCR cleared 14 and rejected 19. Of the 19 rejections, two of the applicant's use of an invalid SSN was the sole reason cited for the rejection. Of the non-Latino applicants, none were rejected because of prior use of an invalid SSN.
The court ruled that Question 75 had a disparate impact on Latinos. The fact that some Latinos who answered "Yes" were hired was not enough to sway the court. Showing that others within a protected class are not subject to adverse action is not a defense to a disparate-impact claim. The Supreme Court has held that focusing on the number of minorities that were hired or promoted would inappropriate ignore the disparate effect of a specific requirement or practice.
Employers must show a "business necessity" to defend a disparate-impact claim. Employers mush show that its employment practice is significantly job-related and serves a legitimate business interest. Although Plaintiff was never arrested, charged, or convicted of any crime involving the use of an invented SSN, that use probably was a crime and the Plaintiff admitted to the conduct, so the court analyzed the case under precedent related to the use of conviction records in making employment decisions.
Even where criminal convictions are concerned, an employer is not recommended to make "a sweeping disqualification for employment resting solely on past behavior...where that employment practice has a disproportionate racial impact and rests upon tenuous or insubstantial basis." Employers cannot disqualify applicants based on a single criterion. Instead, employers must consider the following to provide a business necessity:
- The time elapsed since the conviction
- The degree of the criminal's rehabilitation
- The circumstances under which the crime was committed
The court ruled that the CDCR failed to establish a business necessity because there was no evidence that it individually assessed Plaintiff's application. The courts assessment is that Plaintiff's use of an invalid SSN was not linked to the ability to maintain honesty, integrity, and good judgment as a corrections officer.
Best practices to take away from this historic decision:
- When adjudicating employment qualifications based on criminal history, employers must consider the nature and gravity of the offense, the time passed since the conduct, and the nature of the job held or sought.
- If an employer asks questions in an application form that allows it a deeper look at the applicant than the criminal history does by itself, the employer must actually consider any response and would be well advised to document its decision-making process.