The Legal Lounge: Hiring the “Un-Hireable”


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