Don’t shoot yourself in the foot by asking applicants about their guns

Job applicants have legal rights under federal and state laws even before they become employees, which is why employers must be careful about what questions they ask applicants during the hiring process. Employers should avoid certain questions because they cannot discriminate in the hiring process based on the applicant’s race, national origin, sex, pregnancy, age, disability, genetic information or religion. State laws may also specify additional protected classes, such as sexual orientation or gender identity. But what about gun ownership? Is that a protected category? Well, it is in Oklahoma.

A law that took effect May 22 prohibits Oklahoma private and public employers from asking job applicants whether or not they own or possess a firearm. Private employers violating the law would be guilty of a misdemeanor, punishable by a fine of up to $1000. Public employers and public officials violating the law would be acting outside the scope of their employment and accordingly barred from seeking immunity under the Governmental Tort Claims Act.

Were Oklahoma applicants facing a barrage of questions about gun ownership? Where did this come from? Sponsored by Rep. Rex Duncan (R-Sand Springs), the bill was introduced in direct response to question 59 in a seven-page, 63-item questionnaire given to Obama Administration job applicants. It asked about gun ownership, including registration information, usage and whether the gun had caused any personal injuries or property damage. The law comes only a few months after the Tenth Circuit’s decision holding that OSHA does not preempt “guns-at-work” amendments to Oklahoma’s Firearms Act and the Oklahoma Self-Defense Act permitting employees to store guns in their locked vehicles on company property.

Quick to respond, the NRA supports the Oklahoma law and is taking the Obama Administration to task over the questionnaire. Why are such questions even necessary, the NRA asks, explaining that if misuse of a gun results in applicants having a criminal record, that would be disclosed in other questions—about criminal investigations, arrests, charges or convictions—asked in the questionnaire. (Note that because arrests and investigations alone aren’t reliable evidence that a person has actually committed a crime, employers shouldn’t reject applicants solely because of a prior conviction unless they can demonstrate a relationship between the conviction and the job requirements).

Peter Hamm, Communications Director for the Brady Center, wonders if the Oklahoma law is simply a “solution in search of a problem.” Are such questions really commonplace in the hiring process of most employers?, asked Hamm, who confirmed that the Brady Center does not ask applicants questions about gun ownership, even if the Obama Administration is vetting applicants differently.

While Oklahoma is the first to recognize gun ownership as a prohibited class, it may not be the last. Senator Jim DeMint (R-SC) has declared his intent to enact federal “legislation to prohibit this type of discrimination,” according to ABC News. What does all this mean? First and foremost, all employers should remember to ask applicants only questions that relate directly to their qualifications and ability to do the job. But, for now, Oklahoma employers had better train their staff not to ask applicants about hunting, target or skeet shooting or any other activities that might include gun ownership.