I’ve discussed District Court Judge William Alsup's opinion in a prior post, and faulted it for incorrectly looking at the defendant's application of the challenged policy to Guerrero, rather than looking at the application of the policy more generally:
[T]o establish business necessity with respect to a criminal records policy, an employer is generally required to make an individualized assessment in each case as to whether a particular applicant's criminal record disqualifies him. If an employer's process of performing individual assessments is sufficiently robust, then it should satisfy the business necessity defense, regardless of whether each and every person excluded under the policy was actually unfit. As the district court noted, an employer is not required to establish a "perfect positive correlation between the selection criteria and the important elements of work." Rather, a screen need only be "significantly correlated" with or predictive of important elements of the job.Nonetheless, Alsup framed the question as whether the defendant "individually assessed Guerrero's application in practice," and in the court's view, there was no evidence that the defendant "paid anything more than lip service" to the plaintiff's individual circumstances.
On appeal, the Ninth Circuit gave the district court the benefit of the doubt. In upholding the district court's decision, the Ninth Circuit noted that Judge Alsup had found that the defendant had not actually engaged in an individualized assessment of Guerrero and at least three other Latino candidates. This number may seem small, but there were only nine candidates in total, all of whom were Latino, who were rejected, at least in part, for having previously used an invalid Social Security number. Moreover, the district court had faulted the defendant for having apparently misunderstood Guerrero’s explanation as to why he had previously used an invalid Social Security number even after he had obtained an Individual Taxpayer Identification Number:
[The defendant] should have known (but did not) that an ITIN and an SSN are completely separate and do not substitute one for the other. Guerrero applied for the ITIN so he could pay his taxes, precisely because he did not have a valid SSN. The ITIN, however, could never have been a substitute for an SSN, valid or invalid.These facts, as determined by Alsup, suggested that the defendant generally failed to engage in individualized assessments and that the lapse in Guerrero's case was not an isolated instance. Moreover, if the defendant did not understand the reasons why an individual may have previously used a different Social Security number, it could not reasonably evaluate whether an individual should be disqualified under circumstances similar to Guerrero's.
In in the end, then, although Alsup may framed the issue too narrowly with respect to how the defendant treated the plaintiff, his fact findings were sufficient to support a broader conclusion that the defendant’s practice of performing individualized assessments was inadequate in general, and not merely in Guerrero's case.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.