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June 17, 2015 / Molly Moseley

Fibbing on an application: Minor infraction or grounds for dismissal?

Anthony Quintano/NBC/Reuters/Landov

It’s amazing how something that starts out seemingly small and private – a fib on a job application – can escalate into an issue or event that ignites a national dialogue. That certainly seems to be the case for Rachel Dolezal – the now-former head of the Spokane, Washington, NAACP. Reports claim that Dolezal gave a false answer about her race on at least one job application, although it was for a police department position and not the NAACP.

While Dolezal’s apparent fabrications about her racial identity have sparked a fresh national debate over race in our country, the story also raises some interesting questions for employers. Dolezal apparently falsely answered an application question that she was not legally obligated to answer at all: What is your race? The employer – not to mention a lot of other people – was led to think Dolezal is African American when her heritage is, in fact, Caucasian. In some ways the amount of dialogue and scope of attention feels similar to that of the Brian Williams lying-scandal, though the depth and sensitivity of this debate is far greater.

Was her answer less than honest? Certainly (her white parents say she’s white, not African-American). A bit odd? Yes, again (Dolezal still says she identifies herself as African American). Illegal? Probably not. Justification for termination? The jury’s out on that one.

“Ms. Dolezal hasn’t really committed a crime by definition,” says attorney Yvette Carmon Davis of Carmon Publishing and Entertainment in San Diego, California. Carmon Davis, who identifies herself as African American, practiced law for more than 30 years. “But contractually, she probably has put herself in the position to be terminated, and may have violated some local or administrative prohibitions against just generally being untruthful on some kinds of applications and disclosures.”

On most job applications, it’s up to the applicant’s discretion whether to answer a race question at all. And of course, employers aren’t supposed to consider race when making hiring decisions. However, applications often include a standard statement that says providing false information could get you fired, if you’re hired and the employer later discovers your deceit. Terminating an employee for any reason can expose an employer to legal action, yet the situation becomes very sticky indeed when questions of race are involved.

If you find out an employee lied about his or her race on their job application, what should you do? Do you simply live with the disappointment of knowing you hired someone of questionable character and less credibility than you’d thought? Or do you fire them for being dishonest?

Dan Kalish, managing partner of HKM Employment Attorneys LLP, offers insight into the complexities of the question:

“It is almost impossible to tell what race someone is just by appearance,” Kalish says. “Accordingly, if an employer accuses an employee about lying, and the accusation is wrong, the employer could face a discrimination lawsuit or hostile work environment claim.”

What’s more, Kalish points out, unless an employee admits to the lie, terminating an employee because you believe he or she lied about race could lead to legal liability for the employer. Don’t forget, Dolezal didn’t admit to lying, her parents “outed” her as Caucasian. And the NAACP didn’t terminate her, she resigned.

Simply suspecting an applicant lied about race and questioning him or her about it could expose an employer to ramifications, Kalish says. “Even if the employer suspects that an applicant lied, questions to the employee could, by itself, create a hostile work environment.”

Still, it’s understandable that an employer would want to address any falsehood on a job application, and perhaps especially a lie that relates to such a volatile issue as race identity.

“This is definitely an issue of character,” Carmon Davis says of Dolezal’s case. “According to her employer, it wasn’t necessary for her to be black to get and keep her job. So the question becomes: Why? Why did she do it? Motive is meaningful. If she had to be white to get the job, the hue and cry would have been off the charts. If she had to be black to get the job, some would still protest.”

Even the most sensitive, open-minded employer might feel impelled to act when discovering a trusted employee has deceived them. While Dolezal’s case seems singular for a number of reasons, she’s certainly not the first person to have fibbed on a job application. What would you do if you found yourself in the NAACP’s shoes?

Kalish advises caution. “Employers should be very careful while treading in these very dangerous waters.”