Legal Considerations When Hiring College Graduates and Others Who Protest Against Israel
November 13, 2023
By: Stephen B. Stern
After Bill Ackman and several other CEOs said they did not want to hire Harvard graduates who either signed or were members of organizations that signed a letter blaming Hamas’ terrorist attacks on Israel, there has been some controversy as to whether corporate America should avoid hiring such individuals. In the wake of these protests, some business executives have made it clear that they will not hire college graduates who support Hamas or otherwise engage in antisemitic behavior. This blog post addresses a number of legal considerations when deciding whether to hire college graduates or others who have exhibited antisemitic behavior.
Perhaps the most compelling reason not to hire someone who has a track record of exhibiting discriminatory bias is to avoid potential liability for discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII and comparable state and local statutes prohibit discrimination on the basis of religion, among other protected characteristics. One form of prohibited discrimination is harassment that is sufficiently severe or pervasive to create a hostile work environment. Since October 7, we have seen countless examples on college campuses of students (and professors) engaging in threatening and other harassing behavior – both verbal and physical – directed at Jewish students. Jewish students have been spit on, physically assaulted, barricaded in buildings due to threats of physical violence, and heard express threats/chants to kill Jews, among other things. In addition, Jewish students have heard chants such as “intifada,” “from the river to the sea Palestine will be free,” “by any means necessary,” “we want it all,” and (something along the lines of) “settlers (or colonists) are legitimate targets,” among other sayings – all of which call for the annihilation of the State of Israel, the lone Jewish country (and the only country that can guarantee the safety of Jewish people, as acknowledged by President Biden during his recent speech about the attacks in Israel). Subjecting employees in the workplace to such behavior would create a substantial risk of liability under Title VII. Indeed, a number of Jewish students have described how frightening and disturbing it is to walk on campus or sit in classrooms with people they know who have participated in this conduct. With many college students, particularly from “elite” colleges and universities, endorsing or engaging in such conduct, it presents a real risk of continuing in the workplace (particularly when it often goes unpunished by schools).
Apart from harassment claims, there is a risk of other discrimination claims. For example, imagine a person who has expressed such hostility toward Jews being in a supervisory position and denying a Jewish employee a promotion or denying or otherwise limiting a bonus or pay raise to a Jewish employee. These risks have come up previously when the high-profile case involving Kamau Bobb at Google was in the news (see here).
Most people do not suggest it is improper for employers to terminate the employment of individuals who engage in such discriminatory conduct (indeed, it is a common response to discrimination). For example, a number of employers have recently terminated the employment of individuals who were seen tearing down posters of hostages taken by Hamas (see, e.g., here). Likewise, it should not be controversial for businesses not to hire individuals in the first place if they have demonstrated a discriminatory bias against Jews. In fact, many large law firms have sent a letter to law school deans admonishing them to take corrective action now against antisemitism, otherwise the law firms will not be hiring their students (see here).
In addition to discrimination claims, the antisemitic behavior exhibited by many college students may result in a number of tort claims. For example, if a college student has a history of engaging in acts or threats of violence directed toward Jews, and that student later engages in violence toward one or more Jewish co-workers, the company could be liable under a negligent hiring tort theory if the company knew or should have known the employee posed a risk of such behavior. A common example of this type of claim arises when an employee commits a sexual assault on a customer or employee after having a record of committing sexual assault. With so much video footage of people attacking Jewish students, such evidence could potentially support a negligent hiring claim if the particular student could be identified in the video or, even if not on video, if the student ultimately was punished by the school for such behavior. Besides negligent hiring, other potential claims arising out of acts of physical violence include assault, battery, and intentional or negligent infliction of emotional distress.
Students who find themselves not getting hired (or having offers withdrawn or being terminated from employment) may claim such employment decisions are improper. For example, students may claim they were simply asserting their free speech rights. Unless the speech constitutes protected activity under a particular statute or tort theory (e.g., wrongful termination in violation of public policy), such general assertions about free speech should not give rise to a valid claim against businesses. Threats of physical violence and incitement to violence typically do not constitute protected speech. Also, as explained above, if an employer reasonably believes an individual has engaged in discriminatory behavior, the employer’s adverse employment decision is unlikely to result in liability. Even if the student’s activity does not rise to the level of threats of violence or antisemitism, in most states, engaging in conduct with which the employer simply disagrees typically will not give rise to a wrongful termination claim. By way of analogy, if an employee engages in pornography during off duty hours (e.g., performing on OnlyFans), the employer may terminate the employee’s employment for engaging in such activity. Although the employee may lawfully engage in pornography, the employer may lawfully terminate the employment relationship if it disagrees with that behavior and does not want to be associated with someone who engages in such conduct.
Students may also claim the failure to hire constitutes discrimination based on national origin, religion, or some other characteristic protected under applicable law. As noted above, however, there are a number of legitimate, nondiscriminatory, business reasons for employers not to hire individuals engaging in such behavior and the applicant/employee would need to prove the stated reason is pretext for discrimination to prevail on the claim. Some students may claim that the employer failed to follow procedures required by the Fair Credit Reporting Act (“FCRA”) by considering social media activity or other information discovered when researching the applicant’s background. Unless the review of off duty conduct is conducted by a “credit reporting agency” and included in a “credit report” as those terms are defined in the FCRA, the employer would not need to follow the FCRA procedures prior to taking adverse employment action. Lastly, some students may rely on state statutes that prohibit consideration of off duty conduct, but the number of states that have enacted such legislation are limited in number and it is questionable whether those few statutes would even apply to these circumstances, especially when considering the potential legal risks that companies face when information about prior misconduct is readily available and companies can take appropriate steps to prevent liability based on that prior conduct.
These issues obviously do not apply to every student at “elite” and other colleges and universities, but these concerns are appropriate legal considerations for companies looking to hire college graduates in the coming months and years. Each circumstance, however, warrants consideration on its own merits and consultation with legal counsel on a case by case basis is suggested.