Can employers refuse to hire applicants based on alt-right views or affiliation?
Current tensions in the American political climate present new hiring challenges for employers, write Littler Mendelson attorneys Elizabeth A. Lalik and Jeremy F. Wood.
Editor's note: The following is a contributed piece by Littler Mendelson attorneys Elizabeth A. Lalik and Jeremy F. Wood. Lalik represents employers with respect to high profile or high risk matters spanning all aspects of employment law, whether executive compensation or discrimination claims, unfair competition, equal pay issues, or retaliation and whistleblowing claims. Jeremy F. Wood advises and represents employers in a wide range of labor and employment matters arising under both state and federal laws.
Current tensions in the American political climate present new hiring challenges for employers. White supremacist organizations have become more visible in the mainstream, their leaders increasingly exposed on social media by so-called doxers. Many employers are left to ask whether they can lawfully decline to hire an applicant based on his or her professed hatred of others or affiliation with a group that espouses hateful views towards others.
While the answer varies across jurisdictions, employers in most instances may decline to hire applicants based on affiliation with alt-right and similar groups, or otherwise limit employees' expression of hateful views in the workplace.
Private-sector employees and applicants generally have no constitutional right to free speech, political or otherwise, without fear of employment discipline. Nor do federal anti-discrimination laws, which bar discrimination based on race, color, religion, national origin, sex, age, disability and veteran status protect political ideology or conduct – save for a narrow exception for employees who engage in concerted political advocacy to improve working conditions But in many jurisdictions, employers must also comply with other state or local laws that protect employees (and applicants as well) based on political ideology or conduct. Some alt-right groups claim to be "political," which raises the question of whether affiliation with those groups triggers protection under these laws. This article cannot detail the wide variety these state and local statutes take, but identifies certain broad considerations for employers. Readers should note that not every principle noted below will necessarily apply in their jurisdiction.
The first question any employer must determine is whether a relevant statute protects applicants or only current employees. The answer will vary across jurisdictions. Employers should consult counsel, especially because some courts have held that statutes appearing on their face to cover only employees may also protect applicants.
Second, an employer should consider what scope of activity the law in its jurisdiction defines as "political." One federal court has explained that an employee's expression of hateful stereotypes constituted not political speech but opinion about members of a particular social group. "Political" conduct, the court reasoned, instead concerned government or governmental conduct.
Even if conduct may have (or may be argued to have) some "political" connection, not all politically related conduct will be protected. Courts have held that D.C. law, for example, only protects conduct related to affiliation with a recognized electoral political party. An employer does not violate this action, therefore, when it refuses to hire an applicant based on his or her affiliation with a non-electoral white supremacist organization or involvement in political activity the employer finds offensive. Somewhat similarly, Washington's Fair Campaign Practices Act protects only employees who fail to support or oppose a political candidate, party or ballot proposition. By contrast, under California law, an employer may not refuse to hire an applicant based on his or her participation in broad social protest movements. Connecticut law bars an employer from disciplining an employee based on protected First Amendment speech activity, treating private employers as public employers. Further, some states may protect political use of social media based on laws protecting off-duty use of lawful products.
No matter how broad the scope of the statute's coverage of "political" activity, however, most jurisdictions have recognized exceptions for employers that have a bona fide business reason for declining to hire an applicant.
Such reasons generally take two forms. First, employers may not want to affiliate themselves with applicants who espouse hateful ideology or who explicitly connect themselves with groups that do. Second, employers may not want to introduce such ideologies into the workplace, which may create a hostile work environment for customers and other employees. Courts have widely respected these justifications whether advanced by private or public employers.
The First Amendment bars application of state law where it would require an employer to hire applicants whose views against other groups would be ascribable to the employer. Similarly, courts have found that an employer may refuse to hire an applicant whose views would patently conflict with the employer's interests, for example by suggesting the business is tolerant of a known white supremacist.
Nor can employers be required to hire an applicant whose hateful, on-duty speech would create a hostile work environment exposing the employer to liability under the federal civil rights laws. Other courts have found exceptions to political conduct laws where the conduct involves a threat of violence or disorder.
Lastly, in many jurisdictions, an employer may decline to hire an applicant whose "political" ideology or conduct would interfere with job performance. For example, an applicant may be unable to perform his or her duties if those duties include serving the diverse public in a respectful manner.
Although employers are best advised to consult counsel on the particular laws in place in their jurisdictions, certain considerations may be helpful:
- Articulate the business' guiding values if these include a commitment to respect for all, regardless of religious, ethnic, racial or other differences and diversity. Publicize those values to current employees so that employees understand the business' expectations and associated employee conduct. This can be started by reviewing the company's EEO and anti-harassment policies, and supplementing the language in those policies as appropriate. The business' commitment may also be incorporated into job advertisements and job descriptions for public-facing positions.
- Train recruiting staff on dealing with an applicant who advances hateful views or affiliates with a group that does by exploring whether those views represent a mere difference of opinion or an expression of bigotry likely to create a hostile work environment or to injure the business's reputation.
- Review the company's attire/appearance policy to confirm it prohibits white supremacist insignia on clothing (or tattoos).
- For customer-service positions that may be susceptible to having patrons express white supremacist views in the presence of other patrons or employees, consider training employees on how to respond. Many of the same rules regarding declining to hire applicants based on their views in this regard apply to serving patrons.
- Consider defining protected political conduct in employee handbooks. This may include whether off-duty or on-duty conduct is protected, and whether conduct will be deemed "political" when it focuses not on government affairs but on violent threats or hatred of a particular group. While not dispositive, such definitions may show that an employer that denies employment to an applicant or employee has done so based on its consideration of the issue and has made a hiring decision or taken disciplinary action only to enforce pre-existing policies designed to promote an inclusive and lawful workplace.
- Draft policies that allow current employees to engage in respectful political discourse so long as employees do not politically solicit patrons or create a hostile work environment for others.