Ask The Lawyer By: Daniel A. Gwinn, Esq – Is it Okay to Ask Who Won?
WAS EMPLOYER WRONG TO SEEK JOB SEEKER’S VIEWS ON OUTCOME OF PRESIDENTIAL ELECTION?
QUESTION: When interviewing applicants recently, I have asked what I think is a fairly straight-forward question: Who won the 2020 presidential election? I’m trying to weed out people who would allow their beliefs to get in the way of the facts, conspiracy theorists whose views (and proselytizing) can be disruptive to the work environment and — frankly — people who just are not that bright. One applicant not only told me that the election had been stolen by George Soros with the assistance of Dominion Voting machines as part of a plot for socialist domination, he also claimed Covid-19 is a hoax perpetrated by Democrats to enable them to inject millions of Americans with a mind-control drug. I followed up by asking him whether he thought the earth was flat. He looked at me like I was crazy. Needless to say, I did not hire this lunatic. And — now he’s suing me, claiming I discriminated against him because of his political beliefs. Did I do something wrong?
ANSWER: What you did wasn’t illegal, but it was inadvisable. Federal and state laws prohibit discrimination based on race, color, religion, national origin, sex, sexual orientation or gender identity, weight, height, marital status, disability or age — but there is nothing in the laws that prohibit a private sector employee from asking about politics, or even asking basic true/false questions that might reveal an applicant’s political persuasion. (State and federal agencies are barred from discrimination based on political affiliation.) In theory, there is nothing to prevent a prospective employer from asking applicants if they believe in the Tooth Fairy, Santa Claus, or Godzilla.
So, what’s the problem?
Because political affiliation or politically tinged views generally have no relevance to an applicant’s qualifications for a job (except maybe jobs in politics), questions that tend to reveal political party or political preferences are suspect as cover for discrimination on an impermissible basis. Often, for example, beliefs and political views and religious beliefs are closely intertwined. Belief in the jolly old elf, for instance, could mean a candidate is a devout Christian (Santa Claus was originally St. Nicholas).
In employment law, an applicant may have enough to support a discrimination lawsuit if consideration of a prohibited category was a “motivating factor” in the decision not to hire, even if it was not the motivating factor.
In today’s politically charged environment, taking action against someone because of their beliefs — whether because they support the Black Lives Matter movement or because they believe former president Donald Trump won the 2020 presidential election that (according to state and federal officials and numerous court decisions) he lost — could be dangerous to your business. Last summer, thousands of critics boycotted grocery store staple Goya Foods after its CEO praised then-president Trump. And, in the political arena, the political futures of Republican congressmen and senators who voted to impeach the former president may be in question.
While your desire to avoid hiring an applicant whose views are not grounded in reality is understandable, asking questions about such beliefs may be asking for trouble. Many private businesses don’t have markets segmented by political views, and probably can’t afford to offend what could be a large chunk of their customers.
Will the disgruntled employee be able to win a lawsuit against you? Based on the facts you provided, no — but that won’t necessarily prevent him from bringing one, and putting you to the trouble and expense of defending yourself and your business. Does that mean you should hire him? No. Clearly, he would not fit in at your business. But, in the future — you should probably ditch any questions that aren’t related to a job-seeker’s abilities and aptitude for the work.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
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