by Michelle Ferber and Ben McDonald
With roughly 75% of American adults using social media, there is no denying that social media will increasingly become a standardized method for us to learn about one another. In the employment context, employers now have access to depths of information regarding employees and applicants that has never before been so readily available. A recent Carnegie Mellon study found that 29% of employers across the country research applicants by perusing the applicants’ social media presence. While this is hardly surprising, that same study indicated that employers sometimes use that information to make discriminatory hiring decisions.
The Carnegie Mellon study was conducted as follows: identical resumes and cover letters were submitted through indeed.com to employers all over the country. These resumes and cover letters in no way indicated any information regarding the fictitious’ applicants religious affiliation. Social media sites were constructed for the applicants that contained reserved indications of the applicants’ religious affiliation. As such, an employer could only learn about these traits of the applicants by performing their own searches on social media sites. While highly dependent on a particular region’s individual political tradition, the study revealed that applicants indicating affiliation with one religion were 6-7 times less likely to get a call-back than those who indicated affiliation with another.
While the information that can be gleaned from this study is isolated, it does demonstrate that employers use social media in hiring practices, and that social media can expose employers to information that could lead to discriminatory hiring decisions. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against applicants on the basis of race, color, religion, sex, or national origin. California Labor Code section 98.6 also prohibits employers from discriminating on the basis of political activities, or the exercise of any rights afforded the applicant. The Fair Employment and Housing Act (FEHA) expands the list of protected characteristics to include marital status, gender identity, and sexual orientation.
While wise employers already avoid these subjects on applications and during interviews, this information is often readily apparent on applicants’ social media sites. An employer can be exposed to discrimination allegations if she bases a hiring decision on the protected characteristics revealed from social media, even when the applicant never purposefully divulged the information to the employer. For example, an employer might see that an applicant has a picture in front of a particular church, or that the applicant has a particular disability. Though an employer might not use such information improperly, if the employee claims discrimination, he or she may be able to prove that the employer had that information when the employment decision was made.
While California Labor Code section 980 prohibits an employer from forcing an applicant to provide usernames/passwords to their social media accounts, or from requiring the applicant to access social media accounts in the presence of an employer, there are no laws that apply to what potential employers can look at within the public domain of the internet when making a hiring decision. In reality, social media can provide valuable insight for employers just doing their due diligence in hiring.
With such a potential for intentional and unintentional abuse, Ferber Law offers three recommendations. First, create a standardized social media policy in regard to hiring. Have the various departments or decision-makers work together to determine what hiring goals are accomplished by using social media. Then tailor the policy to target those goals while avoiding unnecessary risks. Second, consider using a third party expert to review applicants’ social media. Not only does this provide the benefit of efficiency and expertise, but crucially insulates the employer from information about an applicant that could lead to discrimination claims. The third party can search all of the applicant’s social media presence and report to the employer only the appropriate and relevant information it finds. Finally, consistency is the key. If an employer wants to use social media in hiring, then a consistent practice and approach should be taken in regard to every applicant. Documenting the consistently applied process will ensure that an employer has a record to prove that his or her practices were appropriate and proper.
There is simply no denying the effects of the internet and social media age on the arena of employment. Social media is far too powerful a tool to be ignored, but also requires employers to be sensitive to the increased information it provides about applicants. Employers are encouraged to proactively analyze their hiring practices to ensure that they don’t accidentally deviate from the lawful path and into possibly discriminatory territory.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.