A narrowly divided Tenth Circuit Court of Appeals affirmed summary judgment for an employer who suspended an employee over concerns about his Social Security number and later fired him when he demanded an apology.  Concerned about an immigration raid, the employer retained independent contractors to check the Social Security numbers of all its employees.  This investigation revealed a problem with the Social Security number of the plaintiff employee, a U.S. citizen of Hispanic descent.

 

The company asked the employee to provide additional documentation of his authorization to work within ten days and suspended him when he failed to do so.  After rejecting several other documents, the company ultimately accepted a statement from the Social Security Administration and invited the employee back to work.  When the employee demanded a written apology as a condition of returning to work, however, his employment was terminated.

 

A narrowly (and bitterly) divided Tenth Circuit upheld a lower court’s summary judgment ruling in favor of the employer on the grounds that the employee had failed to assert sufficient evidence as to whether the company’s proffered reasons for its actions were merely a pretext for discrimination.  The court found problems with the employer’s handling of the situation, but held that the real issue was not whether the employer was correct but whether the reasons for its actions were genuine or pretextual.

 

This case highlights the difficulties employers face in simultaneously navigating the demands of work-authorization and non-discrimination laws.  In undertaking any kind of work authorization review, employers should be mindful of non-discrimination requirements and seek the advice of legal counsel.