Hiring New Grads During Israel-Hamas War Risks Pitfalls for GCs

Effects of Israel-Hamas war protests that engulfed college campuses this past semester may ripple into your company’s offices and legal department as students graduate and enter the employment market. Let’s hope you handle the test better than over a dozen federal judges, who failed badly.

Imagine the scene. A group of your leaders is meeting with the internship coordinator and job recruiter to go over plans for the upcoming hiring season.

“Hey, I don’t think we should recruit from Columbia this year—all those protests, we don’t want anything to do with that here.”

“What? Weren’t you following what happened? The students were protesting for peace and expressing an opinion about Israel’s policies.”

“What about the violence, the chants … the takeover of buildings?”

“Look, this is way bigger than Columbia. Virtually every top school in the country. We wouldn’t be able to find anyplace to recruit at all!”

“OK, how about we just look extra closely at our college hires this year. We’ll scan their social media and ask them about their views on the conflict during interviews.”

“Think we should run this by legal?” Well, yes.

This minefield has already cost school presidents their jobs and upended campuses. It’s an employment law final exam question you don’t want to fail. Let’s look at the options.

First, you can take the path of over a dozen federal judges, who recently announced they would no longer hire anyone from the Columbia University community (law or undergraduate). Two of these judges, James Ho of the US Court of Appeals for the Fifth Circuit, and Elizabeth Branch of the Eleventh Circuit, had already announced their personal boycott of hiring law clerks from Yale and Stanford based on the schools’ perceived “cancel cultures.”

The irony here is rich. Citizens don’t usually expect discrimination from federal judges, even based on a nonprotected legal factor like choice of college. Students who have no connection to the protests, even decades in the future, are branded as “guilty” and denied potential employment without a hearing or due process simply for their decision to attend Columbia. Welcome to the federal justice system. No word yet on whether the judges plan to add hundreds of other colleges that faced upheaval this spring to their ban.

A decision to avoid hiring from colleges where protests occurred could substantially reduce your ability to hire top talent. It could also backfire and damage your brand with a whole generation of college students. It’s a poor option.

A second option is simply to direct interviewers to stay away from the topic altogether and hire without regard to the protests. It’s an appealing option, but you risk hiring candidates who may have participated in egregious acts of hate or violence on either side of the issue. This could be embarrassing to the brand and disruptive to your culture if the information came out post-hire.

The final path is the most challenging—do limited diligence on your employment candidates that stays within bounds of what’s permitted by applicable state and federal law. Proceed with extreme caution here.

School disciplinary records aren’t usually available to potential employers, and many states limit use of arrest records and even convictions for minor offenses when considering a job applicant.

Reviewing private social media accounts has serious pitfalls—many states now bar employers from seeking access to them. While reviewing public social media information is generally permissible in the US, reviewing such data in the EU is forbidden without a candidate’s explicit permission.

And since a person’s social media might reveal their religion, nationality, marital status, and other protected classifications, by reviewing this information you’re more vulnerable to a discrimination claim, even assuming your company can agree on what sort of protest activity is out of bounds.

Think about your company’s values, discuss the options with your hiring managers, and get ready for a potentially contentious hiring season.

Rob Chesnut consults on legal and ethical issues and was formerly general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor.

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