Business forum: State's job law protects almost everyone

As we draw nearer to the early presidential primary season, Minnesota employers can take a lesson or two from this year's crop of candidates jostling to be leader of the free world.

More than ever before, American voters will have to confront their prejudices about race, sex, religion, age and ethnicity, among other factors. Such deliberations take place in the privacy of the voting booth. But let us imagine that the candidates were applying for a private-sector job with your company in Minnesota. What employment-law considerations might arise?

If Hillary, Rudy, Barack, Mitt and the others were waiting patiently in your lobby with crisp copies of their résumés in hand, you probably would conclude that the group as a whole has impressive credentials of education, accomplishments and experience. But if you could only hire one candidate, which factors could you and could you not consider under Minnesota law?

All employers probably know that they cannot take into consideration the applicant's race or sex in making a hiring decision, so Barack Obama and Hillary Clinton are each considered to be members of a protected class under the Minnesota Human Rights Act.

Similarly, it would be unlawful to consider Mitt Romney's Mormon faith or the fact that Bill Richardson is a Latino. Although discrimination based on age is also unlawful, at age 71, John McCain loses some protections under Minnesota law, which in some circumstances can allow mandatory retirement starting at age 70.

None of the candidates is gay, but sexual orientation is also a protected status under Minnesota law. Sexual orientation is not protected under federal law, although Congress has recently taken up consideration of just such a provision. Arnold Schwarzenegger cannot run for president because he was born in Austria and the Constitution requires a president to be "native born." But for any position in Minnesota, "national origin" is a not a legal basis for discrimination.

What is less commonly known is that under Minnesota law, discrimination based on "marital status" also is unlawful. According to the law, marital status is defined as whether a person is "married, remarried, divorced, separated or a surviving spouse," which pretty much includes everybody.

Spousal support?

According to some polls, Republican front-runner Rudy Giuliani has drawn disapproval among certain groups for his two divorces, but making a hiring decision on that basis would be a violation of Minnesota law. Similarly, Fred Thompson is known for having married a younger woman and John Edwards is accused by some of exploiting his wife's illness, and considering these issues in a hiring decision might be also be considered marital-status discrimination.

Minnesota law includes "protection against discrimination on the basis of the identity, situation, actions or beliefs of a spouse or former spouse." Minnesota's definition goes farther than almost any other state or federal law in this regard, perhaps too far.

Anyone deciding whether to support the Democratic front-runner, Hillary Clinton, cannot help be influenced (pro or con) by the "identity" of her spouse, the 42nd president of the United States. But this might be a problem if she was applying to work in Minnesota.

Other factors might also arise under Minnesota law. For example, Barack Obama has been known to sometimes smoke cigarettes on the campaign trail. But Minnesota prohibits employers from refusing to hire a job applicant because of the candidate's use or consumption of lawful consumable products during non-working hours, including alcohol or tobacco.

Minnesota's whistle-blower statute prohibits retaliation if an employee reports in a good faith a violation of any federal or state law, refuses to follow an illegal directive or participates in a public investigation. In this case, however, Dennis Kucinich's report of seeing a UFO probably does not qualify for protection. Finally, any candidate these days has to answer whether he or she ever "inhaled" while back in college, but if you want to give a job applicant a drug test under Minnesota law, you need to comply with the numerous requirements of Minnesota's Drug and Alcohol Testing in the Workplace Act.

Hiring, like voting, can often come down to subjective gut-feelings about a candidate, which is fine, just so long as the decision is not based on any of the factors discussed above. All of these regulations might make campaigning on the hustings of Iowa and New Hampshire seem easier than applying for job in Minnesota. But most laws are common sense, and the technical requirements can be easily met in consultation with a human resources professional or employment law attorney