As we head into election season, discussions are turning to politics more and more frequently.
Your mother may have warned you against talking about politics, but there’s one occasion especially when this conversation should be avoided entirely: the job interview.
You may think asking a potential employee, “Who are you voting for?” is a harmless icebreaker question — but it can get you into hot water, William A. Herbert, chair of the New York State Bar Association’s Labor and Employment Section, tells Business Insider.
In the public sector, Herbert says asking about political affiliations during a job interview might violate state tenure laws that have been enacted since the 1800s to prohibit political patronage.
For example, under New York’s civil service law, public sector employers are prohibited from making political inquiries, with the exception of policy-making positions.
Herbert says that an applicant denied a public sector job following such an inquiry might also claim that the denial violated their right of association under the First Amendment and state law.
It’s also illegal for federal employers to ask federal employees and applicants about political party affiliation.
“Although the law does not prevent a private-sector employer from asking about a potential employee’s political activities, any employer should think carefully before asking these questions,” says Stacey K. Grigsby, a lawyer with law firm Boies, Schiller & Flexner LLP in Washington, DC, who specializes in employment law issues and previously worked for the US Justice Department.
Herbert points to state laws like New York’s Labor Law, which prohibit discrimination based on an individual’s off-duty and off-premises political activities and could form the basis for a lawsuit.
And asking job candidates about their political beliefs could be illegal if it were perceived as related to their race, gender religion, sexual orientation, or other legally protected status, Grigsby says.
“As a practical matter, such inquiries are inadvisable,” Herbert says. “It is rare that the political affiliation or plans for voting of an applicant or an employee has any relevance to the ability to perform a job.”
“And an employer could very well risk offending a qualified candidate with this type of question,” Grigsby says.