The recent escalation in the Israel-Hamas conflict has created a ripple effect that threatens to complicate the hiring process for corporate legal departments. The intensity of protests sweeping college campuses has pushed companies, especially their General Counsels (GCs), to reconsider their hiring strategies for new graduates. Rob Chesnut, former general counsel at Airbnb and ex-Justice Department prosecutor, outlines the potential pitfalls and considerations in an article on Bloomberg Law.
One path some federal judges have taken is a blanket boycott of institutions like Columbia University, a response ignited by the protests. Judges James Ho of the Fifth Circuit and Elizabeth Branch of the Eleventh Circuit had already extended similar boycotts to Yale and Stanford, citing the schools’ “cancel cultures.”
This approach, while clear-cut, raises significant questions about fairness and long-term impact. Barring all students from certain universities regardless of their involvement in protests could limit access to top talent and alienate a whole generation of future legal professionals.
Another option is to ignore the protests altogether in hiring decisions. While straightforward, this tactic risks unknowingly hiring individuals who may have engaged in disruptive or violent behaviors, potentially harming the company’s brand and work environment.
The third, and perhaps most nuanced, approach is to perform limited diligence within the bounds of applicable state and federal legal frameworks. School disciplinary records are usually off-limits, and many states restrict the use of arrest records and minor convictions in employment decisions. Moreover, reviewing candidates’ private social media accounts presents its own set of legal challenges, as more states implement laws preventing employers from accessing such data without explicit permission.
GCs are advised to tread cautiously. Invasive investigations could lead to allegations of discrimination based on how the information is interpreted and used. Companies must carefully weigh their values, develop a clear hiring protocol, and prepare for what promises to be a contentious hiring season.
Rob Chesnut consults on legal and ethical issues and brings a wealth of experience from his stints at Airbnb and the Justice Department.