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Businesses walk fine line examining job candidates’ associations

Reports that a contract attorney with the Baltimore City Law Department was a member of a neo-Nazi organization had swift ramifications last week: the city ended its relationship with Glen K. Allen, and one day later announced City Solicitor George Nilson would be stepping down.

But the news also raised broader questions about what power employers have to screen their potential employees for incriminating political ties, as well as what hiring practices can help employers avoid falling into a similar situation.

While the evidence of Allen’s involvement with the anti-Semitic National Alliance group was uncovered by a Southern Poverty Law Center investigation rather than a simple Google search, several employment law attorneys said the case offers hiring lessons that can be applied to less-extreme situations.

Stephen H. Kaufman, a partner with Wright, Constable & Skeen LLP in Baltimore. (File)

Stephen H. Kaufman, a partner with Wright, Constable & Skeen LLP in Baltimore. (File)

As an employer researching a job candidate only to find the candidate’s associations with questionable organizations, “you don’t have an obligation to get to the truth,” said Stephen H. Kaufman, a partner with Wright, Constable & Skeen LLP in Baltimore. “If you find something online that you find disturbing about the person — and it’s not related to a protected category, it’s because they’re affiliated with some group you’re unhappy with — you don’t have an obligation to get to the bottom of it.”

As long as the employer’s distaste with the candidate doesn’t stem from the person’s race, gender, ethnicity or membership in any other protected class, the employer is free to not hire that person — or to fire them, Kaufman said.

Of course, Kaufman added, an employer could also confront the candidate about the information he or she has found online.

“You can Google somebody, you can go onto Facebook. You can’t require someone to give you their passwords, but you can go look at whatever’s public, you can check the court records,” he said. “There’s nothing to stop you from doing further investigation — you can call references, do more online research, hire an investigator, there’s any number of things you can do — but the question is, it is worth the effort if you have 10 other candidates?”

But Kaufman said he does not recommend fishing for information about an applicant’s political affiliations during an interview.

“The best practice, from my view, is that the job interview questions ought to relate to your ability to do the job,” he said. “If it doesn’t matter to the job, I wouldn’t ask, legal or not.”

Determining ‘fit’

Kathleen Cahill, a Towson employment law attorney who frequently represents employees in discrimination claims, said hiring decisions generally come down to whether the employer feels the candidate is the right “fit” for the organization and the role. If an employer, in the course of researching a candidate’s background, uncovers ties to an organization with extreme views, the candidate likely will not be considered.

“Let’s say they have a panel, a group of finalists who meet their criteria — they do look for whether it’s a ‘fit,’” Cahill said. “If somebody was hiring lawyers to prosecute race discrimination cases or police-involved excessive force cases, if you find this stuff, you’d say, ‘Gosh, that’s not a fit. That’s certainly not a fit.’ And, generally, that’s not articulated to the candidate. I’m aware of no law that would prohibit or limit the employer’s right to do that.”

Because the hiring process typically occurs behind closed doors, Cahill continued, rejected candidates rarely know what contributed to the employer’s decision.

“There can be hiring criteria or a job description or requirements, minimal requirements, for applicants, but there’s always been and always will be many subjective elements,” she said.

While it can be illegal in public workplaces to screen candidates for political views or fire someone for supporting a particular politician, a case involving alleged neo-Nazi ties wouldn’t necessarily fall under that protected umbrella, Cahill said. Elected officials also have broad discretion over employees who work for them, an issue in a recent lawsuit brought by a former Baltimore prosecutor who alleged she was fired by State’s Attorney Marilyn Mosby for her support of Mosby’s election opponent.

For job candidates who worry they were passed over for a position not because of fit but due to illegal discrimination, it can be difficult to prove, she said.

“Sometimes in a hiring situation, an interviewer will say something that is clearly inappropriate or biased; sometimes an employer will require medical or mental health screening prior to an offer,” Cahill said. “The vast majority of the time, people, when they aren’t selected, they don’t know why. Some worry about the true reason and whether it’s unlawful.”