Social Security Numbers and Application Policies

Our clients frequently deal with social security number (“SSN”) issues. Can we require applicants to have SSNs? What if a prospective resident does not have a SSN?  If we require SSNs, can we waive this requirement for applicants that do not have a SSN?  If we require SSNs, do we have to waive this requirement if the applicant tells us they do not have a SSN?  If an applicant tells us that they don’t have a SSN, have we violated fair housing laws if we don’t waive the requirement? 

The SSN discussion is put into focus by two additional questions.  Who most likely will have a SSN number?  Who most likely will not have a SSN?  Generally, all American citizens should have a social security number.  This includes all citizens born in the U.S., and all immigrants who have obtained U.S. citizenship status.  Generally, all non – U.S. citizens (persons not born in the US) will not have a SSN.  Fair housing laws prevent discrimination based on “national origin”. 

As far as policies go, remember under fair housing laws there are three types of discrimination.  One, policies that intentionally discriminate against protected classes.  Two, policies that fail to reasonably accommodate disabled individuals.  Three, policies that have a disparate impact on a protected class.  Disparate impact means distinct, adverse, or different.  The policy only affects the protected class.  Policies that have a disparate impact are not intentionally calculated to discriminate against a protected class, but as a practical matter affect one or more protected classes more than the general population as a whole.

Requiring a SSN during the application process is not intentionally designed to discriminate against applicants based on national origin.  However, the argument against a SSN requirement is that such a requirement has a disparate impact on the “national origin” protected class during the application process.  Non-U.S. born applicants, even if they are lawfully in the U.S., are less likely to have a SSN and thus the requirement that you must have a SSN to become a resident will adversely impact prospects based on national origin.  However, this is by no means the end of the argument.

Not all policies that adversely impact segments of the population are automatically discriminatory under fair housing laws.  When you think about it, most policies affect one or more segments of applicants.  Requiring 2x or 3x income discriminates against poor people.  Does that mean fair housing laws require that you eliminate this requirement?  Of course not.  Even if a policy discriminates, a policy may not violate fair housing laws if the policy is supported by a legitimate non-discriminatory business purpose.  Requiring a SSN during the application process is supported by a very strong legitimate non-discriminatory business reason.  In many respects, a person’s SSN is a person’s identity.  Without someone’s SSN, identity and credit verification is difficult (some would say impossible).

A SSN requirement probably does affect non-US born individuals, but you have very good reasons for the policy.  If a lawsuit gets filed, whose position will prevail in court? Even various fair housing experts disagree on this issue.  Predicting the outcome is difficult for several reasons, especially in Colorado.  First, no court has ever decided the issue of whether you can require SSNs on applications.  Second, Colorado courts (both state and the United States District Courts for Colorado) have not even decided on the test, which would be the basis for determining the outcome of the case.  With no legal precedent to rely upon, the likely outcome of any lawsuit can only be predicted by examination of analogous cases involving housing discrimination based on a “disparate impact” theory.

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