Employment Law Daily Target must defend claim it fired employee because she was Hispanic, not for allegedly fraudulent SSN
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Friday, December 22, 2017

Target must defend claim it fired employee because she was Hispanic, not for allegedly fraudulent SSN

By Joy P. Waltemath, J.D.

Refusing to entirely dismiss the Title VII complaint of a fired Target employee who claimed that after two years, Target fired her for allegedly using a fraudulent social security number (a charge she denied), a federal district court in Illinois determined she had adequately pleaded national origin discrimination, not citizenship status discrimination—which is not unlawful under Title VII. She claimed her employer had a pattern of making “false allegations” against Hispanic employees, including accusing them of using fraudulent social security numbers as a prelude to firing them. These allegations sufficiently alleged that she was fired because she is Hispanic and the accusation of a false social security number was pretext. The court dismissed her hostile and discriminatory work environment claims as not administratively exhausted and her negligence claim as untimely, however (Radek v. Target Corp., December 19, 2017, Lee, J.).

But I was born in Texas. When she was hired by Target as a member of its logistics team after passing a background check, the validity of the employee’s social security number was not questioned, she alleged. She was promoted to trainer and claimed that throughout her over two years of employment, she had social security taxes deducted from her pay, received W-2s from Target, and filed tax returns. But after an unidentified third party sent a letter to Target management claiming a “large dark haired ponytailed Hispanic woman” was stealing from the store, selling those items on eBay, and using a fraudulent social security number with Target, HR called her in and accused her of using a fraudulent social security number. The employer asked her to verify her social security number and identify where it was issued. She told HR that, because she had been born in Texas, she thought her mother had applied for it there. The very next day, however, the employee was fired for “using a fraudulent social security number.”

The employee’s complaint further alleged that she wasn’t the only one; she identified two other Hispanic employees who, a year or two earlier, had been accused of using fraudulent social security numbers and were fired, only to be rehired after it was confirmed that their social security numbers were valid.

“Illegal immigration status.” In its motion to dismiss her complaint, Target argued that her Title VII and Section 1981 discrimination claim should be dismissed because her firing was based not on the employee’s race or national origin, but because she did not have a valid social security number. Target said it merely “followed federal immigration law,” and firing the employee for her illegal immigration status is not prohibited by Title VII. But the employee’s complaint clearly stated that she was terminated due to her national origin, not her immigration status, and also clearly stated that her social security number was valid, contrary to Target’s claims.

Or pretext. While it is true that Title VII does not forbid discrimination based on actual citizenship or immigration status, the court pointed to U.S. Supreme Court precedent that for years has noted that “an employer might use a citizenship test as a pretext to disguise what is in fact national-origin discrimination. Certainly Title VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.” Accordingly, the court found the employee’s complaint sufficiently alleged that she was fired because she is Hispanic and that the accusation of a false social security number was merely pretextual.

Section 1981. It also upheld her Section 1981 claim against Target’s argument that it lacked sufficient allegations to satisfy the “intentionality” requirement of that statute, noting her claims that Target had a pattern of making “false allegations” against Hispanic employees, including false allegations of using fraudulent social security numbers for the purpose of firing them, which the court found enough at the pleading stage.

Dismissed claims. The employee’s attempt to include a hostile environment claim or one for discrimination in the terms and conditions of employment (as opposed to her termination) was unsuccessful, however. The court found she had only exhausted her Title VII claim based upon her termination. Accordingly, those claims were dismissed, as was her state law negligence claim, which was untimely.

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