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Tips to Avoid a Discrimination Lawsuit When Hiring a Santa Claus for Your Business

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By George Khoury, Esq. on December 15, 2016 5:56 AM

The Mall of America's decision to hire a black Santa Claus for this holiday season made a big impact across the country. Even though there have been countless black Santas before, the prominent placement in America's largest shopping mall sparked some unexpected controversy.

As a business owner, if you are considering hiring a Santa Claus for your business, you need to be aware that race, gender, and other protected statuses, cannot be considered as factors in hiring.

Santa's Qualifications Do Not Include Race

A business is not required to hire a store Santa Claus applicant just because they are not white due to fear of a race discrimination lawsuit. However, if a business hires a less qualified white Santa, over a more qualified Santa of a different race, then there is legal exposure for a race discrimination claim.

Create Objective Hiring Criteria

To make sure you are being race neutral when selecting your business's Santa, you should create a list of the objective hiring criteria for the job. For example, you will probably want to make sure that your Santa has a deep, full belly laugh, can fill out the costume, has an authentic (or authentic looking) beard, and knows how to delight and deal with children of all ages. Additional criteria can include prior experience, availability, criminal records/background checks, and even enthusiasm. None of the above considerations involve a person's race.

Casting the Role of Santa

While many people believe that hiring a Santa Claus for a mall, store, or other business, is the same as hiring an actor, that does not excuse race discrimination. In fact, despite what many people believe, race discrimination in TV and film casting is illegal.

Deciding Between Close Calls

Sometimes there will be two applicants that are very difficult to choose between. If this is the situation you are in, you may want to consider doing a second or third round of interviews to try to differentiate the candidates more. Sometimes, a business may feel compelled to choose a non-white applicant due to fear of a discrimination lawsuit.

However, consider this: choosing a non-white Santa just because of race could also open you up to a race discrimination claim from the white Santa. And no, that's not reverse race discrimination, it's just race discrimination. If you have a close call, you may want to consider offering the position to both Santas and have them alternate days or weeks.

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