April 13, 2021
Social Media and Discriminatory Hiring Practices: What Businesses Need to Know
Most employers understand that federal laws (the Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and others) make it illegal to discriminate against employees on the basis of race, color, religion, sex, national origin, age, and disability. These prohibitions apply not only to workplace treatment but also to the hiring process. An employer sued for discriminatory hiring has a strong defense if it can prove that it was not aware of the candidate’s protected status when it made its hiring decision. Accordingly, conscientious employers try, where possible, to avoid learning protected demographic information in the screening process. For example, prudent employers avoid asking demographic questions such as age, race, gender, religious affiliation, etc. on employment application forms if such information is not required to evaluate candidates for a particular position.
At the same time, social media has become a ubiquitous and valuable tool that employers use to screen candidates for open positions. Social media often provides insight into candidates that employers simply cannot gain through written applications or even interviews. Unfortunately, in most instances, social media searches will also reveal demographic information about candidates that employers want to avoid. Accordingly, social media searches can create risks for employers that their hiring practices will be challenged as discriminatory. Further, the law is still developing concerning the degree of privacy individuals can reasonably expect with information placed on social media sites.
So how can employers protect themselves without abandoning the wealth of information that can be gleaned from social media? We have several recommendations. First, employers should assign someone who is not involved in the hiring decision to conduct social media searches of job candidates. The assigned screener can prepare a memo to the hiring officer(s) outlining useful, relevant information learned about each candidate and excluding protected demographic information.
Second, the screener should review only a candidate’s public profile to avoid allegations of invasion of privacy. It is clear that individuals do not have a reasonable expectation of privacy as to information they post publicly. However, it is less clear when information is shared unintentionally (e.g., by others in the candidate’s network or through the candidate’s online activities) or shared on a limited basis (e.g., only to friends or contacts). We recommend that employers do not send “friend requests” to candidates to gain access to additional information. A candidate could argue that, as a job seeker, he or she felt compelled to accept the request to avoid being eliminated from consideration.
Third, employers should not rely exclusively on information learned through social media in their hiring decisions. Data suggests that the adoption and use of different social media platforms varies among different age groups. Thus, reliance solely on social media risks excluding certain age groups from the hiring process.
Fourth, if an employer relies on positive or negative social media information in its hiring decision, it should keep a record of the information found and the manner in which it impacted the hiring decision. That way, if a candidate later brings charges, the employer will have a contemporaneous record to show that its decision was based on relevant, non-discriminatory information.So far, we’ve explored the risks of relying on social media in the hiring process and how to mitigate those risks. Are there also risks in not searching social media sites as part of the hiring process? The law is clear that employers have a duty to act reasonably in their hiring decisions. An employer who hires an individual with a known history of dangerous, harassing or illegal conduct may be held liable for negligently hiring that individual if he or she later commits a similar act while on the job.
An employer’s concern is how broad its duty is to uncover a candidate’s past harmful conduct. We are not presently aware of any cases where an employer has been held liable for failing to uncover prior conduct information through social media. However, we can envision an employer being held liable if it does not conduct any social media searches when a cursory public search would have quickly revealed a candidate’s dangerous past. Accordingly, we recommend employers conduct searches of publicly available social media information so long as precautions are taken to mitigate risks of discrimination claims.
Larry Evans practices in the litigation section of Oliver Maner LLP. He has extensive experience handling all aspects of commercial litigation including professional malpractice defense, financial services litigation, creditor’s rights, construction litigation, directors and officers liability, employment litigation and general business disputes. He can be reached at 912-236-3311 or firstname.lastname@example.org.