Potential Issues in using Social Media Information in Employment Decisions (Discussion)

Below are some of the common issues and considerations for using social media information in employment decisions.

Illegal discrimination

According to a 2018 national survey conducted on behalf of CareerBuilder by Harris Poll, 70% of employers use social media to screen candidates before hiring. While they may not be searching for negative information, more than half of those surveyed (57%) said they have found something during their screenings that led them to not hire someone. If even a single, disgruntled job applicant sued claiming he/she was not hired because of the illegal consideration of information obtained from a social media site, it could cost the company hundreds of thousands of dollars in legal fees. Convincing a court that the information uncovered from the viewing of social media was not used in the hiring process is often an uphill battle. After all, why was the site accessed if there was no intent to use the information?

Both the federal Civil Rights Act and state statutes prohibit discriminating against an applicant or employee because of a protected characteristic, such as race, religion, ethnic origin, disability and, increasingly, gender identification or sexual preference. For most jobs, this information is intentionally omitted from the employment application process in order to avoid legal problems. But if an employer or its agents want to find out such information, it is often readily available from a candidate’s Facebook page or LinkedIn profile. Of course, users may omit this information from their social media accounts or restrict access, but many do not— especially since they assume it will be accessed only by their friends or close associates.

The case of C. Martin Gaskell v. Univ. of Kentucky (2010 WL 4867630 E.D Ky. 2010) is an example of what can happen when an employer uses information gathered from social media as part of the hiring process. Dr. Gaskell was an astronomer who applied for a job as the director of the observatory at the University of Kentucky. During the job interview, the chairman of the Physics and Astronomy Department stated that he had researched Dr. Gaskell’s religious beliefs (online), and that they might be unacceptable to the dean of the department. The information he obtained showed that Dr. Gaskell was an outspoken critic of evolution and a believer of the intelligent design viewpoint. After someone who believed in evolution was hired for the position, Dr. Gaskell sued the university, claiming that its conduct violated his rights under the Civil Rights Act. Specifically, he alleged that the University discriminated against him based on his religious beliefs. During the discovery process, it was learned that an employee within the department sent an email to the chairman regarding an Internet search

that she conducted on Dr. Gaskell. In the email, she discussed the professor’s anti-evolution religious beliefs and indicated it was not a positive attribute. The court agreed that this information provided Dr. Gaskell with enough evidence to pursue a lawsuit to determine whether his religious beliefs uncovered in the Internet search were, in fact, illegally used to deny him the position sought. The case was ultimately settled for $125,000 before trial.

A discrimination trap that perhaps is frequently overlooked falls under the Americans with Disabilities Act (“ADA”) and may happen when an adverse decision is based on photos  or other postings showing a job candidate drinking or abusing drugs. Surveys show that adverse decisions after viewing such content often involve a reasoning that the individual “used bad judgment” but ADA provisions, as they relate to substance abuse, pose a discrimination risk as “addiction to a drug that has been prescribed, or alcohol abuse problems put the candidate in a protected disability class.”

Another risk exists in the form of disparate impact claims, which can arise if it turns out that an employer has been systematically refusing to hire applicants with a particular protected characteristic. Even if no disparate impact occurred because an employer viewed social networking profiles, disparate impact can result if the company tends to hire people who have social networking profiles rather than those who don’t. It is a generality, but this could occur because younger, more Internet-savvy and more affluent people tend to use social networking more than others.

EEOC consequences

In addition to potential lawsuits from individuals, an area of legal concern is the consequence  of running afoul of the Equal Employment Opportunity Commission (EEOC). The EEOC has become very active in scrutinizing employers’ hiring practices and in filing cases against them when it determines an employer’s hiring practices improperly include the use of social media.

NLRB issues

Whereas the EEOC is tasked with examining companies’ hiring practices, the National Labor Relations Board (NLRB) is the agency that enforces the National Labor Relations Act, which protects union-related activities. Although the NLRB has interpreted the Act as allowing the researching of candidates through social media, it cautions employers that doing so may pose a significant legal risk. It warns that if an unsuccessful job applicant can establish that a prospective employer had knowledge of his/her protected activity through the viewing of social media, the prospective employer may face liability if the applicant alleges he/she was denied employment because of it. An employer may be found legally liable unless it can show that it would not have hired the applicant regardless of its knowledge of the activity. Even if the individual making hiring decisions is not the one who reviewed a candidate’s social media activity, the employer may still be subject to liability since the NLRB has a liberal standard for “imputed knowledge.”

Off-duty conduct statutory restrictions

Several states have enacted legislation to protect employees’ conduct outside of the workplace. Generally, these statutes restrict an employer’s ability to discipline employees for engaging in legal activities while not at work.

In the social media context, in New York for example, the off-duty conduct statute restricts employers’ ability to take adverse action (including hiring, pay, workplace conditions, and termination) against employees engaged in recreational activities. In California, the Dept. of Industrial Relations has interpreted Labor Code § 96(k) which prohibits employers from taking adverse action due to an employee’s lawful conduct outside of work, to apply to decisions not to hire, even though the statute does not explicitly refer to hiring.

FCRA requirements

Under the FCRA § 607(b), consumer reporting agencies (CRAs) are required to exercise “reasonable procedures to assure maximum possible accuracy” of the information. Since the information on social media sites is self-reported and can be changed at any time, it is often difficult to ascertain that the information is accurate, authentic and belongs to the subject. Online identity theft is not uncommon, as are postings under another person’s name for purposes such as “cyber–slamming” (which refers to online defamation, slander, bullying, harassment, etc.) There is also evidence that some applicants try to game the hiring process by creating fake profiles of other potential applicants whom they view as competition for jobs.

Terms of use limitations

While certain social media sites have stricter privacy controls than others, many limit the use of their content. The terms of use agreements typically state that the information is for “personal use only” and not for “commercial” purposes. Although the definition of “commercial” in connection with employment purposes is interpretive, many legal experts say that employment screening fits that scope.

Privacy rights

Most states permit common-law claims for invasion of privacy, and some states, such as California, also provide constitutional privacy rights that may apply to private-sector employers.