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Social Media Research May Expose Discrimination Claims

Hiring managers walk a fine line between vetting candidates online and putting themselves at risk for lawsuits from passed-over candidates, say employment law experts.

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If social media research on a job candidate turns up drunken, half-naked photos, is that a reason for passing them over? Most employment experts would say that's fine. But what if your research shows that the person is black, or old, or Muslim, and the hiring manager passes them by?

In a series of blog posts, human resources consultant Jessica Miller-Merrell has recently been raising the alarm about The Era of Social Media Discrimination.

"Because in social media everything is public, employers can be using more information in the hiring process, but it's also easy for them to see what race you are, whether you're married, or maybe a medical condition you have, and companies shouldn't be making hiring decisions on the basis of that," Miller-Merrell said in an interview. Not only shouldn't they be doing it, but they may be opening themselves up to legal action if there is any hint to the contrary, she said.

The federal Equal Employment Opportunity Commission (EEOC) is already pressing cases based on theories of discrimination like "unconscious bias" that employers find difficult to defend against, Miller-Merrell said. Sooner or later, she believes the EEOC will hit on social media cases as a potential gold mine for raising revenue by assessing fines. Sometimes even when the EEOC doesn't follow through with an enforcement action, it blazes a trail for private lawsuits. "You can wind up with a large lawsuit regardless of whether there is anything to it or not," she said.

Margaret M. DiBianca, an attorney at Young Conaway Stargatt & Taylor, who runs the Delaware Employment Law blog and often writes about the right and wrong ways to use social media in hiring and recruiting, said she has heard this warning before, but thinks it is exaggerated. "From a lawyer's perspective, I should always say err on the side of caution and be risk averse, but I just think this thing is so overblown by the people who bring it up--I don't know, maybe it drums up business for them."

Characteristics like race that might be uncovered by looking at a social media profile also would be revealed as soon as the candidate walked into an interview, DiBianca said, so the issue is more how the organization acts on that information. True, there are more subtle facts that might come from social media research that might not be apparent otherwise, like the person's religion. Another scenario both Miller-Merrell and DiBianca raised was the woman who is recently pregnant--not so pregnant as to be obvious in the job interview, but a fact she has announced on Facebook.

"There are things you can learn online that you cannot and lawfully should not take into consideration, but the answer is not to pretend that you don't know," DiBianca said. Instead, it's better to have a policy on how the information should be treated, she said.

DiBianca believes backgrounding a candidate has become so easy that "I think employers actually should be almost obligated to do a basic Internet search." For example, an employer who hired a delivery driver whose online persona was all about drinking to excess could be at greater risk of being sued for "negligent hiring" if that person were subsequently involved in an accident, she said.

However, Miller-Merrell isn't the only one who sees pitfalls in social research on candidates.

Michelle Sherman, an attorney and social media specialist with the Los Angeles law firm Sheppard Mullin, recently blogged Social Media Research + Employment Decisions: May Be a Recipe for Litigation. She cited a lawsuit against the University of Kentucky by an astronomy professor who claimed he was passed over for a promotion because of his religious beliefs. The search committee which originally considered him the front runner for department chair apparently changed its mind after finding a link to an article on his personal website talking about his belief in creationism. "Whatever the outcome of this litigation, it has been costly and perhaps damaging to the reputation of the University," Sherman wrote.

Miller-Merrell isn't actually recommending that you don't do social media research on candidates, only that your company should be careful how they go about it. In the end, all three women mentioned a similar solution: having a division of duties between the person who does the research and the person who makes the hiring decisions.

DiBianca suggests limiting social media research on a candidate to the top three or four finalists. "Have a searcher, who is not the person who makes the hiring decision, and give that person 10 things you want them to look for and if they see any of those 10 things, they should note it in their report," she suggests. The report wouldn't touch on race, religion, or politics, but could cover professional issues like an overall general bad attitude or disclosure of company confidential information, she said.

"What worries me more is the rogue supervisor," going out and doing research without any formal guidelines, DiBianca said. It's better to have a formal policy and stick to it, so you have something to point to if the EEOC ever does come calling, she said.

"A failure-to-hire or failure-to-promote case is all based on speculation," she points out, and the best way to combat speculation is with facts.

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