The political question hiring managers should never ask job candidates in an interview

REUTERS/Kevin Lamarque

Asking job candidates who they're voting for isn't as innocuous as you think.

From drinks with friends to gatherings around the family dinner table, pretty much everywhere you go these days, it's hard to escape discussions about the election.

But there's one place that these discussions just don't belong: the job interview.

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If you're a hiring manager, you may think asking a potential employee, "Who are you voting for?" is a harmless icebreaker question or a good gauge on the candidate's cognizance.

But this question 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.

Public employers

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.

Private employers

"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.