The Oakland Press

Was employer wrong to seek applicant’s views on 2020 election?

- Daniel A. Gwinn Columnist

Q: When interviewi­ng applicants recently, I have asked what I think is a fairly straightfo­rward 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 mindcontro­l 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?

A

: 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 em

ployer 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 — because 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, which, 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 probably should ditch any questions that aren’t related to a job-seeker’s abilities and aptitude for the work.

 ??  ??
 ?? ASSOCIATED PRESS FILE PHOTO ?? Voters fill out ballots in Cleveland in October 2020.
ASSOCIATED PRESS FILE PHOTO Voters fill out ballots in Cleveland in October 2020.

Newspapers in English

Newspapers from United States