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Staffing Resource Center

Using Social Networking Sites for Hiring May Lead to Discrimination Claims

Thinking about checking out job applicants on Facebook or MySpace? That may not be such a good idea, an employment attorney advised attendees at SHRM's Employment Law and Legislative Conference March 17, 2010, in Washington D.C. According to Michael Cohen of the law firm Duane Morris in Philadelphia, "There is a serious risk from the discrimination standpoint of allowing the use of social networking sites during the hiring process."

"When you go on someone's page, you have access to information that you wouldn't normally have. You will get information about protected classes that you don't want at this stage of the game," he noted.

Statistics show that 35 percent of adult Internet users have profiles on at least one social networking site, 75 percent of job recruiters use the Internet as part of the screening process and 25 percent have eliminated candidates based on information found.

Why do employers use these sites? Among the reasons, Cohen said, are to check applicants' qualifications, to identify other possible candidates for open positions and to see "whether they have exercised bad judgment."

However, he advised against using what you find on someone's site to form an opinion about that person's judgment. "Who here has never exercised bad judgment?" he asked. "Who hasn't exercised bad judgment today?" Drawing conclusions based on what you see on someone's site can be problematic, he said. For example, if the potential employee has posted numerous pictures showing him or her drinking alcohol, what do you really know from that? And if you draw the conclusion that the person has a drinking problem, that may bring the Americans with Disabilities Act (ADA) into play.

In addition, the information obtained may not be accurate. It may contain mistakes or exaggerations or may be maliciously planted.

Numerous Types of Potential Discrimination Claims
Federal, state and local discrimination laws protect many classes of people from discrimination. State and local laws may be more expansive than the federal laws, such as Title VII, and the ADA, protecting for example, sexual orientation and marital status.

The list of protected groups is quite long, Cohen noted, and includes:
  • Age
  • Citizenship
  • Disability
  • Gender identity or expression
  • Genetic information
  • Marital status/parental status
  • National origin/ancestry
  • Pregnancy
  • Race/color
  • Religion
  • Sex
  • Sexual orientation
  • Veteran's status/military status
Although you would not ask about any of these at a job interview, Cohen said, you are likely to get information about one or more of them from looking at an individual's social networking site. A job applicant's sexual orientation or religion, for example, may be readily apparent from photographs or from posts on the site.

And although this information may not enter into your hiring decision at all, once you have accessed the site, it may become a problem down the road, Cohen remarked, particularly if you choose not to hire the applicant. You have information that you would be better off not having, and you may have to prove that you did not rely on it in failing to make a job offer.

Develop a Policy
So what should an employer do? "Don't use social networking sites," Cohen advised. But if you do, "you have to use them for everyone." That may mean having to ask applicants for their passwords to the sites, which may raise privacy issues, he noted. In addition, document any searches that you have conducted.

"Your organization needs a consistent position on this. It can't be sometimes yes, sometimes no. And once a decision is made, it has to be communicated to applicants," he said.

Furthermore, if you choose to use an outside agency, you must ensure that you are in compliance with the Fair Credit Reporting Act.

Allowing Use of Social Networking Sites at Work
A related issue is whether you should allow employees to access social networking sites while at work. Whatever you decide on this question, Cohen said, it should be stated in your written policies. If you choose not to allow access, you should consider blocking the sites so employees cannot access them.

If you want to prohibit use only at certain times or for certain purposes, that also should be clearly stated. And any policy must be consistently applied.

"This isn't that new anymore," Cohen noted.