The Legal Lounge: Hiring the “Un-Hireable”

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Jul 22, 2020
This article is part of a series called The Legal Lounge.

Hopefully, we all now know that employers not only have the right but are right to fire employees for racist rants or jokes that go viral. But what happens when these people look for new work? Will employers hire individuals with a viral, racist post in their past?

The answer is likely yes. 

Justine Sacco is now chief communications officer at Match Group following her disastrous tweet in 2013. (“Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!”). 

Mike Bacsik, a radio personality, went on to work for a CBS station in Dallas after he who used a racist slur on Twitter. (“Congrats to all the dirty Mexicans in San Antonio.”)

Amy Cooper will likely be hired by a financial consulting firm despite getting fired as a result of a video of her needlessly threatening to call the cops on a Black man in New York’s Central Park. 

Even Michael Lofthouse will likely be back in a CEO role even though he yelled “f-cking Asian piece of sh-t” at a family at a restaurant.

Past Racism = Present Risk

Hiring someone with a racist post in their past comes with significant risk. This is especially true when hiring a person who will have management responsibilities. If ever there is a new allegation of discrimination or harassment stemming from their individual conduct, their past will haunt them —  and will haunt you as the new employer. The post will be evidence presented to a jury. The employee will have to explain the post, even if posted years ago. Recruiters and hiring managers will be asked, “Did you know about this racism in the past?” And if they didn’t know, they would be introduced to a concept called negligent hiring

Negligent hiring is a common-law (a.k.a. judge-made) legal claim brought by an employee or customer when the employer knew or should have known that an employee posed risk. As employers, we’ve known about this kind of claim for a long time. It’s why we screen candidates carefully and conduct background checks. We’re careful to assess risks, especially where jobs duties can be exploited. 

For example, we don’t hire someone to be a butcher if the person killed a bunch of strangers with a knife. We don’t hire someone with an identity-theft conviction to be a mortgage broker. We don’t hire someone convicted of embezzlement to be our accountant. If we did any of these, we’re putting the organization as risk for negligent hiring.

The existence of a racist (or misogynist, antisemitic, ageist, Islamophobic, homophobic, etc.) post establishes that this potential employee has biases that you as the employer must deal with just like a criminal past. If there is a post and the employer didn’t know about it, who is going to be at fault for not knowing about it? Gird yourself, recruiters, because regardless of whether you take the blame publicly, you’ll likely get a part of the blame internally.

Recruiters need to be comfortable Googling candidates. If I now Google Justine, Mike, Amy, or Michael, lots of articles about their posts will pop up. Even if someone’s racist posts did not garner media attention, social media accounts are nearly always in the top five search results on Google. 

Googling Candidates the Right Way

Before you rush to type a candidate’s name into your browser, here’s what you should think about before you start Googling people:

  1. Decide what could disqualify candidates before you ever look at resumes. This might include racism, misogyny, religious biases, disparaging comments about your industry, poor grammar, etc. You can also pick how far back you want to look. (Consider looking at posts for the past two years.)
  2. Have HR do it. Hiring managers should not be Googling candidates. They could be exposed to all sorts of protected-class information that folks in HR are trained to ignore.
  3. Google the top candidates. If you get 600 candidates for a manager position, please don’t waste your time Googling all of them. Wait until the last three to five. 
  4. If something comes up, ask the candidate. You could have the wrong person. It’s possible things have changed. And asking the candidate about what you found is great feedback to the candidate that their post is a problem. 

Now, imagine you’ve been interviewing a top-notch candidate who could be great at the job, but you find a racist post from six months ago. Suppose you then take the post to the candidate and say, “Tell me about this post.” Here’s how to handle possible candidate responses:

  • I was hacked.” Your response: “If you were hacked, why didn’t you fix that and delete this post?” If they don’t give you a good reason, move on to the next candidate.
  • “You didn’t tell me you were going to look at my social media.” This response should raise a red flag. Your response: “We did the search ourselves, so we were under no obligation to request to search publicly available information, like your Twitter account.” (Note that if you have a third party conduct the search, you must follow the notice, consent, and adverse notification rules of the Fair Credit Reporting Act. It should also go without saying that you should not hack past privacy measures; only look at what is publicly available.) Moving on to another candidate is likely what you’ll do here too.
  • “Oh my. Let me explain the circumstances of that post and what I’ve learned since then.” This is the ideal response. The candidate acknowledges the problematic post, explains what they’ve learned since then that you can use to help inform any additional training you might want to provide, and it shows growth. In such cases, maybe, just maybe, the risk to the organization can be minimized.

It is possible for people to learn from their mistakes. So when it comes to racist posts, demand learning before hiring someone who could put your organization at risk. Then supplement that learning with your own organization’s training and development. It is only when organizations acknowledge their roles in reducing racism that will we ever get on the other side of this crisis.

Click here for more Legal Lounge columns.

This article is part of a series called The Legal Lounge.
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