Discriminatory Twist in Networking Sites Puts Recruiters in Peril

September 21, 2009
In the rush to cut recruiting budgets and avoid the avalanche of résumés now generated by job boards, employers are increasingly tapping professional and social networking sites as a sourcing tool.

Some employers now rely heavily or even exclusively on Twitter or LinkedIn to fill open positions. While this approach may create short-term cost savings and new efficiencies, it may also skew applicant pools and trigger discrimination lawsuits.

“Networking sites, including Twitter, exclude whole populations,” says Jessica Roe, managing partner at Bernick, Lifson, Greenstein, Greene & Liszt in Minneapolis. “We are going to end up with a very homogenous workforce. The social networks represent limited social groups and very small labor pools. It’s an enormous issue.”

According to the latest data from Quantcast, only 5 percent of LinkedIn users are black and only 2 percent are Hispanic.

“Social networking sites are problematic because the population is limited and highly selective,” Roe notes. “I anticipate more race and age claims over the next two years, and a significant portion will be from sourcing through social networking sites, where the users are generally white and age 20 to 40. We’ll see lawsuits.

“Employers don’t want to pay recruiters, so they take the path of least resistance, but they have to look very carefully at the applicant pool and cast a much broader net. Recruiters are often swept up by the latest process. Minor decisions lead to major consequences.”

Using networks for recruiting is ripe with risk for future discrimination claims, says Pamela Devata, a partner at Seyfarth Shaw in Chicago.

“Sourcing from professional network sites such as LinkedIn carries a risk that the method could be challenged on discrimination grounds,” Devata says. “It represents a hiring pool that is not open to the general population. Using a limited network may have a disparate impact. If hiring through these networks can be challenged, it will be.”

Employers should consider the risk of litigation arising from disparate impact claims.

“If the business practice is to use Twitter and the existing pool is 50 percent female and 20 percent minority, but you’re down to zero for both groups because your digital network is heavily male and non-minority, then you must establish that there is a business necessity for the practice,” says Paul Mollica, partner at Meites, Mulder, Mollica & Glink in Chicago. “The first company that gets sued for this will have to be very resourceful because it will be very difficult to establish a reason for relying exclusively on Twitter.”

Some employers are integrating Twitter into their employee referral programs to help employees connect with possible job candidates.

“Combining Twitter with employee referral programs could turn out to be a digitalized version of word-of-mouth hiring methods because you are simply using referrals and employees’ online acquaintances,” Mollica says. “If you combine these methods and use networks to expand the applicant pool, that’s a valid method, provided that you are also reaching candidates through broader means.”

‘Digital mist’
Employers who rely heavily on professional and social networks for sourcing candidates may also encounter record-keeping issues.

“When the OFCCP [Office of Federal Contract Compliance Programs] or plaintiffs’ attorneys come along with a discovery request and want to see the trail for recruiting, these employers are going to come up short,” Mollica warns.

“The problem they will have created is that the data and the paper will not be there, and they will only have evidence in digital form on smart phones and flash drives. How will they pull it together? Employers will be left throwing up their hands. Worse yet, when the EEOC comes knocking to investigate a complaint, the records are in a digital mist, and that could be a terrible problem. It’s risky because the records aren’t there.”

When sourcing is complete and recruiters move into the selection phase, using social networks to screen candidates generates additional legal risks.

“The use of the Internet to screen candidates exposes recruiters to information on individuals who are members of groups protected under federal law,” Mollica notes.

Some of the information recruiters gain from Facebook or MySpace pages, such as race and gender identification, would normally be available on applications or in interviews.

“But identifiers that might not normally be apparent, such as religion, pregnancy, age and sexual orientation, may be revealed on social networking sites,” Mollica notes. “The risk is that visiting Facebook or MySpace pages or even Googling candidates may reveal information that no employer should have in a properly constructed application or interview.”

Consequently, recruiters must think carefully about what they may find before they troll social networking sites.

“If you wouldn’t ask a question in an interview or on an application form, why would you expose yourself to the information in any way?” Mollica asks. “Once you’ve seen it, you can’t pretend that you didn’t. An employer can make the calculated gamble, but it creates a litigation risk.”

In addition, record keeping becomes an issue.

“It is perilous to search the Internet for information about candidates without keeping a record,” Mollica notes. “But where does that record live? On every office computer, on the recruiter’s home computer, on smart phones? What happens is that a judge or jury draws an inference that if you didn’t maintain records, the records must have been prejudicial.”

Other compliance twists
As the number of applicants continues to rise, some employers have added new job qualifications that effectively eliminate minority candidates but are not required to perform the work.

“Employers are looking at their hiring practices because there are more candidates available in an increasingly competitive job market and employers can tweak their hiring criteria,” Devata says. “We’re seeing a re-evaluation of positions and job descriptions.

“Because the pool is bigger, companies can ratchet up the qualifications required for a job. There is a time lag in discrimination litigation, so we have not yet seen the potential consequences of this in discrimination claims.”

Employers may have legitimate reasons to modify the qualifications for a job if, for example, the open position represents a consolidation of several jobs, but arbitrarily raising the requirements may lead to trouble.

“Employers need to do a realistic assessment of requirements for each job,” Devata cautions. “Don’t stretch the requirements or create false expectations, because these actions may lead to discrimination claims.”

Devata also recommends that employers revisit their job application forms to ensure that they do not include questions that could create disparate impact.

“With budget cuts, the reality is that the human resources and recruiting functions have been cut, while at the same time the applicant pool has doubled or tripled. Employers also have an increased responsibility to train hiring managers on interviewing techniques and permissible questions.”

At the other end of the staffing spectrum, Roe notes that she is spending most of her time defending layoff actions because many employers are still unaware of the risks entailed.

“I ask clients to show me spreadsheets listing every employee who is being laid off by race, age and gender, and they look surprised,” she reports. “They think they are supposed to be color blind.

“Employers see an opportunity to eliminate the bottom as that bottom has been defined under what are often biased terms,” Roe says. “Too often, black candidates are hired into bad positions, perform poorly, and are laid off. The whole process must be carefully managed from hiring to release.”