Here’s the latest craze: check out a prospective employee’s personal information by logging on to one of the social networking sites such as Facebook or MySpace for information not usually available on a job application or at a job interview.
The prevalence of the trend garnered national news attention March 8 when ABC News reported on the predicament of a Yale law school graduate who alleges she was unable to find a job because of photos and unfavorable information about her posted on the Web. According to the news report, 26 percent of employers access social networking sites for information about employees.
Whose bright idea was this? Certainly not any employer/defendant who has sat with me at counsel table in a case involving hiring discrimination.
For those of us with teenagers at home, social networking sites are as everyday as breakfast: announcements of the latest breakups, postings of the weekend’s parties and events, and the self-defining "profile." And there’s the problem. Surveys indicate that a substantial number of users of social networking sites routinely divulge critical information about themselves they would not normally reveal. As the chief security officer for a Silicon Valley-based maker of encryption software recently stated in an article at NewScientist.com, "I am continually shocked and appalled at the details people voluntarily post online about themselves."
Take a look at some of the self-disclosing profiles on Facebook:
A candidate discloses that he kicked a drug habit, got out of rehab, and is getting on with his life.
"My Ritalin level must be down today," writes a young prospective employee.
Another candidate posts the comment, "The turning point in my life: attending a college course on ‘under-represented minorities and the continuing plight of African-Americans in the white community.’ "
A job applicant writes: "Nothing is more important to me than the values I have learned from being a Seventh Day Adventist."
Getting this kind of information before hiring an applicant is tempting for employers who want to know a little more about the job applicant. But employers are specifically prohibited from asking applicants questions that disclose information that might allow the employer to make a hiring decision based on unlawful discrimination. Interview questions causing the most problems are those questions that give an indication of how old the applicant is, or the applicant’s national origin, religious beliefs, marital status or health and physical condition.
Yet the answers to these forbidden questions are almost always posted in the social network "profile." Consider the applicant whose online profile reveals his recent release from rehab or her proud affirmation of the struggles with permanent physical difficulties following her nearly fatal car accident. An employer who refuses to hire such an individual after accessing this information—even with absolutely no discriminatory intent, and for perfectly good lawful reasons—will most likely find itself responding to a charge of discrimination under the Americans With Disabilities Act. The employer will be explaining why that information was requested or obtained, and how the hiring decision was based on other, lawful factors.
Savvy human resource professionals know not to ask questions that might reveal factors which, if the basis for a hiring decision, would evidence discrimination. Questions that directly or indirectly lead the applicant to explain his/her religious beliefs, marital status, mental health or physical conditions are off-limits. And so searching those networking sites for information on an applicant is a very bad idea.
An employer with the misfortune of defending a discrimination lawsuit can vouch for the nearly endless resourcefulness of those plaintiff/employee attorneys whose pictures appear on the backs of telephone books. An employer with absolutely no intention to discriminate can easily end up on the witness stand being cross-examined by an employee’s attorney because, for example, handwritten notes made during a reference check mention that the applicant "was proud of his religion." Or maybe a recruiter jots down an applicant’s comment that "I’m having my silver wedding anniversary this year." Trust me, the employer is going to be called upon to explain why the company did not engage in religious or age discrimination.
Plaintiffs’ attorneys used to have to work very hard to dig up information about employers and their hiring practices and employees. But Google, Facebook, My Space and other search and social networking sites have made the job very easy for plaintiffs’ attorneys. Here’s a not-far-fetched scenario: An individual turned down for a job opening walks into a lawyer’s office. "I didn’t get the job I applied for. And I had every qualification they asked for."
"Well," says the resourceful plaintiff’s lawyer, "let’s take a look at your blog."
If there is anything in the plaintiff’s ramblings about anything that brings the employee within shouting distance of any applicable discrimination laws, the plaintiff’s attorney will invariably say, "I think I can help you."
Employment fads, like those parachute pants, are hasty reactions to pop culture and social issues, and are not necessarily in line with employment law. It is important to recognize the difference between the two.