Asking About Politics When Hiring Invites Legal Risk

Employers have been rightly cautioned about many types of hiring biases, including racial, religious, and gender- and age-based biases, but what about political affiliation bias?

Case in point: A very qualified candidate mentions volunteering for a political party or attending a political rally, or maybe your social media screen reveals who they voted for in the last election. Can you legally discriminate against—and not hire—that person based on political ideology?

The answer is, in most places, yes. There is no federal law that creates a protected class based on political beliefs or actions, and there are only a handful of state and local laws that protect applicants and employees from political affiliation discrimination.

But experts agree that even though political orientation protection is not widespread, employers should refrain from asking any interview questions related to politics to reduce the risk of potential liability and reputational damage. The federal government itself is prohibited from asking federal employees and applicants questions about political party preference, and all employers are prohibited from engaging in voter intimidation or coercion.

“In most jurisdictions, if a recruiter doesn’t like someone for being a Trump supporter or because they vote Democrat, it’s not protected, but you need to be careful not to cross over into something trickier,” said Joyce Chastain, an employment law compliance consultant at The Krizner Group in Tallahassee, Fla. “If someone’s political affiliation includes an expression of a political platform that carries over into any of the protected categories, you can quickly get into a trouble zone.”

Asking About Politics Often Not Illegal, But ‘Bad Form’

Employers can require that an applicant be a registered Democrat or Republican in cases where it makes sense, such as at political organizations, Chastain said. It would be reasonable for the Republican National Committee to want to know if the person in charge of its cybersecurity is a Democrat, for example, but best practices would dictate that most hiring managers look beyond any personal beliefs and remain objective when vetting candidates. It would be inappropriate and irrelevant for a nonpolitical organization to ask about political affiliation, experts agreed.

“Asking about political affiliation in a job interview is not illegal in most places, but it is bad form,” said Eric Meyer, an attorney and founding partner at Pierson Ferdinand in Philadelphia. “It falls under questions I would not ask even though they are not per se illegal.”

Interview questions and employment decisions should be made on qualifications, experience, skills, and talent, not information about candidates that has nothing to do with the job.

“Even if you are in a jurisdiction that does not expressly protect political opinion or affiliation, there are plenty of laws that infer such protections,” said Christine Walters, SHRM-SCP, an HR and employment law consultant at the FiveL Company in Westminster, Md. “Most anti-discrimination laws include perception and association,” she added.

When Politics Crosses into ‘Lifestyle’

Sometimes, a person’s political leanings might be tied to or perceived to be tied to other activities, Walters said. “Some states and local jurisdictions also have what is sometimes referred to as ‘lifestyle’ discrimination laws. Generally, these are laws that prohibit discrimination based on an individual’s lawful activity.”

Walters illustrated an example: A candidate shares a love of hunting in a job interview, and the recruiter assumes that engaging in hunting as a recreational activity means the candidate is likely a Republican and doesn’t hire that person.

“Now the candidate may file a charge or claim alleging ‘lifestyle’ discrimination or that the recruiter perceived the candidate to be a Republican and, on that basis, hired someone else, which in some states and localities, could be problematic,” she said.

It’s not just a theoretical exercise. Several studies show that political bias does occur in employment. And a recent poll of 750 managers in the U.S. found that 1 in 6 said they are less likely to hire a candidate who supports Donald Trump, and 1 in 8 are less likely to promote an employee who does.

The first step is recognizing one’s own biases. “We all have them. The next step is ensuring you do not act on them in your work. It’s good advice to not engage even if the candidate brings it up during the interview,” Walters said. “If the applicant initiates a political comment or question, redirect the conversation, such as, ‘I prefer to keep politics separate from work,’ or some words to that effect. Keep your interview questions related to the KSAs [knowledge, skills, abilities] required for the job.”

Meyer agreed, saying that it’s best to focus on the job itself. “There is a cultural component to recruiting, but it would be surprising if someone’s political affiliation should be involved in that evaluation,” he said.

Walking the Line on Social Media Screens

Perusing candidates’ social media profiles during the hiring process is a fairly common practice among recruiters and hiring managers, but the practice carries some risk.

Employers need to be especially aware of TMI—too much information—when looking at candidates’ social media. That’s because recruiters and hiring managers could learn about things that should not be considered for employment purposes, Chastain said.

Searching applicants’ public-facing social media is not illegal, but employers should take care. “Let’s assume I am looking for political leanings, but I see that the candidate is pregnant, and I see their religious preference,” Meyer said. “And I don’t hire that person based on other reasons, but from the applicant’s standpoint—if they know a social screen is part of the background check—they may assume it was discrimination based on a protected characteristic.”