Social Media Discrimination & Social Media Recruiting

Social Media Recruiting & Using Social Media Sites

 

Companies are using social media sites as part of their recruiting and candidate selection process and even using social media in the workplace.  With more than 88 billion Google searches conducted monthly, chances are that either your HR team, recruiters, or managers are searching the interwebs for candidates. Maybe it’s part of your regular candidate sourcing process.  You search Twitter, build lists, make friends, and fill positions.  Or maybe you use tools like Wink to search across social media networks by keyword.  Depending on how a candidate restricts and controls their privacy on social media sites like Facebook, a recruiter or manager can learn a great deal of information that shouldn’t be included in their decision to interview or even a hire a potential employee.

What Recruiters Find Through Social Recruiting

These things are referred to as protected classes and according to the law are considered information that should not be factored into the decision making process when a candidate is evaluated as part of the hiring process. According to Title VII, the ADA, GINA, and ADEA, these protected classes include:

  • Age
  • Sex
  • Religion
  • Disability
  • Genetic information
  • Race/Color
  • National origin
  • Pregnancy

So imagine if a manager Googled a candidate and visited their Facebook profile only to learn that their top prospective was 20 weeks pregnant.  This position was very important and was responsible for a project that goes live just about the time that the candidate would be on maternity leave.  The manager considers this information when making their final hiring decision and decides to offer the position to the candidate who is not expecting.

Social Media Sites in the Workplace

Or maybe, a company representative learns about a current employee’s family medical condition from their blog.  According to their blog, the employee needs a heart transplant.  Your company is a small organization and a costly surgery like this will result in thousands of dollars of expense for your company especially since they currently cover 100%.  The CEO is very specific that he doesn’t want healthcare costs to increase and your leadership team’s bonus is heavily influenced by your corporate P&L.  A decision is made to lay off the employee before he is added to a transplant list and a surgery is scheduled.

Unfortunately, situations like these are not farfetched and have yet to be tested in the courts system as social media is a relatively new business tool.  Companies need to be prepared for a new era of discrimination claims using social media.

 

Have anything to add?  Leave a comment below.  Learn more about social media and employment law in EEOC & Workplace Discrimination.

 


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Comments

  1. Great post Jessica!

    The use of social media in recruiting raises two potential areas for discrimination: disparate treatment and disparate impact. Disparate treatment is what we usually think of when discussing discrimination – it’s intentionally treating people differently because of gender, race, age, disability, etc.

    The other kind of discrimination is disparate impact. This occurs when a facially neutral policy or practice affects different groups differently. The intent of the decision-maker here is irrelevant – it’s purely a statistical question.

    Using social media in recruiting and hiring has the potential to create both disparate treatment and disparate impact. However, if a few simple steps are followed, social media can be used to recruit and hire individuals safely and effectively.

    Looking forward to the next post!

    Reply
  2. How is this discrimination? It seems like it’s being made a human rights problem, when its really not. Looking up a possible future employee is the employer trying to get a view of who they will be hiring, their resonsibility. Obviously, if it comes to something like a heart transplant, it is completely wrong….it doesn’t affect their actual working ability.
    But that’s not the point. I get the feeling that you’re trying to say that someone shouldn’t be looking up other people’s Facebook or Twitter accounts, right before hiring them. How? It’s a way for the employer to get a sense of what kind of personality they are paying to have working for them. It’s like a job interview before the actual interview. You can’t use the pregnancy example. You can’t. If an employer doesn’t want to hire the person because they are pregnant, you can’t relate that to social media. When the inevitable job interview comes, the employer will probably, in the event that the person is 20 weeks pregnant, take notice. And yes, that may be discrimination, and the person may not get hired, but that really has nothing to do with social media.

    And if the person is doing something illegal or just plain stupid, like drinking or smoking or blatantly swearing, then so be it. Visibility is a trap, and whenever you do something on the Internet, you have to be up for the chance that it’ll be seen by someone else. It’s not really discrimination, or any other human rights issue.

    But that’s just my opinion.

    Charlie Smith |
    Reply
  3. I’m on the fence with your post.
    I agree, that having an employer browsing through your social networks, scanning for

    possible information that could result in your chance of getting the job being

    hindered.
    With those last two example you gave, where the employer doesn’t hire someone because

    they are pregnant or having a heart transplant, it is a complete and utter

    discrimination. I understand if you find information such as the employee doing

    illegal actions or the employee blatantly swearing, that is without a doubt, a reason

    to not hire them.
    But, you are trying to say that employers should not have the right to browse through

    your social media websites, and scour for possible information that may lead them to

    not hiring you. I disagree with that. They should have access to that because its

    perfectly acceptable, not a violation of privacy in any way. Visibility is a trap. You

    can control 100% what you post, and if you post something that might cost you your job

    for a good reason, such as posting crude comments to your boss as your facebook

    status, you are the idiot, but if the employer decides not to hire you for a reason

    that’s discriminating, they are the one who’s wrong.
    Pregnant women and people who are receiving a heart transplant should have a right as a human, they did nothing wrong so they should be hired. Their pregnancy/disability should be overlooked.
    In short, I think you are trying to grasp a good standing on this issue, but you come
    off as a cynic of social media.
    But that’s just my opinion.

    Waffles |
    Reply
    • @Waffles,

      I’m a realist. I’m a social media proponent but am cautious of how HR professionals and businesses should use because I have been on the receiving side of a multi-tiered class action lawsuit. Let me tell you it is not a lot of fun. Companies need to think about how, when, why, and where they are using social media.

      If a company uses protected class information to make a hiring decision, it is the employee’s problem if they choose to pursue it. Doesn’t matter if the information came from social media or not, it is still illegal and a form of discrimination. No where in this article, did I say that using social media is a violation of privacy. It’s public information that is available for the public. There is nothing discriminatory or wrong with that. It’s how they use the information and if they are cataloging when and how they are using it especially if the company is a government contractor.

      Thanks for the comment. Appreciate the discussion. Further supports my thoughts on why these types of conversations need to continue to happen in corporate America.

      JMM

      Reply
  4. I’m on the fence with your post.
    I agree, that having an employer browsing through your social networks, scanning for
    possible information that could result in your chance of getting the job being hindered.With those last two example you gave, where the employer doesn’t hire someone because they are pregnant or having a heart transplant, it is a complete and utter discrimination. I understand if you find information such as the employee doing
    illegal actions or the employee blatantly swearing, that is without a doubt, a reason
    to not hire them. But, you are trying to say that employers should not have the right to browse through your social media websites, and scour for possible information that may lead them to not hiring you. I disagree with that. They should have access to that because its perfectly acceptable, not a violation of privacy in any way. Visibility is a trap. You can control 100% what you post, and if you post something that might cost you your job for a good reason, such as posting crude comments to your boss as your facebook status, you are the idiot, but if the employer decides not to hire you for a reason that’s discriminating, they are the one who’s wrong.
    Pregnant women and people who are receiving a heart transplant should have a right as a human, they did nothing wrong so they should be hired. Their pregnancy/disability should be overlooked.
    In short, I think you are trying to grasp a good standing on this issue, but you come
    off as a cynic of social media.
    But that’s just my opinion.

    *edited

    Waffles |
    Reply
  5. There are now companies that specialize in background checks that monitor a prospect’s social media/online presence. All of the information they find is publicly available and legal to obtain. They redact information that indicates protected classes and present copies of the report to both prospective employer and applicant.

    If your report turns up racist rants or drunken frat party pictures or something and you loose out on an opportunity, at least as an applicant you can learn from the experience, update your privacy settings, remove potentially offensive material from the Web or at least un-tag yourself so it’s not associated with your name any longer.

    Of course drunken frat party photos are more of a minus for some positions and more neutral for others – especially if the recruiter was in a frat and matured beyond that behavior. It could also be a super ++ if you’re applying for a job in marketing at a brewery or distillery.

    By using a third party and not researching social media directly, companies can avoid the types of problems outlined in this post.

    ATallGuy |
    Reply
    • @ATallGuy,

      Thanks for the comment. I’m aware of the social media background check companies. I think that any process like this that is handled by a third party limits the liability by the company, but social media background checks aren’t the real issue. Managers are using social media as their own form of background check without the proper training on what they can or can’t make a hiring decision based on. Additionally, the social recruiting industry is booming. Recruiters are using social media to source candidates. No social media background check company can help with that. There are others who can.

      JMM

      Reply
  6. So should I take the fact that I’m looking for a FT job off my profiles: LinkedIn and Twitter?

    David Case |
    Reply
    • David,

      Thanks for the question. And that entirely depends up to you. Are you currently employed and do you want your employer knowing that you may in the market for a new place to work? You can be on Twitter and LinkedIn without looking like you are in the market for work. Just connect and schedule offline conversations either via DM, email, or by phone.

      Best of luck to you. As always, send me an email if you have more questions.

      JMM
      blogging4jobs(at)me.com

      Reply
  7. It works both ways.
    I find candidates constantly seeing profiles of hiring managers online and forming opinions / judgements prior to accepting job offers or even scheduling interviews.
    They are increasingly curious to read the Internet footprint of company and hiring manager if they should or should not be working with such a company and such an individual.

    Eric Patki |
    Reply
    • Thanks for the comment Eric. The interesting thing is that disqualifying recruiters or organizations because of their personal activity including medical history, race, or color on social networking profiles isn’t against the law. Companies who do this to candidates on the other hand. . . is.

      JMM

      Reply
  8. Thanks Jessica for writing an article on a subject that has yet to be looked at in depth and how to be handled as at times technology and its effect is faster than the creating of fair-use guidelines in line with this.

    E.g. I would have no problem with recruiters or future employers looking at my LinkedIn profile as that is in regards to my professional capacity, however, although Facebook has become a very mixed, friends/aquaintances/etc network, personally I would wish to keep it separate. I’ve had pesonal experience of using it experimentally (in line with research of online technologies as part of my passion and interest) as well as expressing political opinions, which in a circle of friends is acceptable, but which is outside of the line of work and due to some ‘friends’ having association with recruiters and not knowing me that well, miscontruing the information/taking it out of context to indicate that I’m an activist among other things.

    Hence, I find a question of this blurring of private/professional where that is heading. In choosing a workplace, I don’t want to know people more personally than they would wish to share and likewise, I wouldn’t want the workplace to have any private information on me. While one poster points out that the ‘search’ can work both ways, in terms of values, I would be looking to ensure that the employer is reputable in terms of fairness at work, established process, best-practices etc. while in these harsher economic times, I seem to see a move towards more middle-school assessment in terms of popularity and the necessity to ‘brand’ oneself even in one’s private sphere, to create the right image that the employer will buy into as opposed to the know-how and practical expertise…

    Would welcome any thoughts you may have.

    Reply
  9. There are many ways to prevent such discrimination. Using social media as a reference is a great way to understand an employee on a much deeper level, however, a set of best practices needs to be in place so as to deter any potential discrimination. For example, making sure that the hiring manager is not the one conducting online checks. Inform candidates that their profiles might be checked, and ask for their permission. Also, including documentation of these practices is vital.

    We have tons of information on best practices in social media background searches here- http://thevesumegroup.com/2011/12/13/about-social-networks-and-background-check-search/

    Soft skills and personality are also important factors in finding the right candidate. The more a recruiter can become connected and invested in their candidates, the more likely they are to fill a clients need in both technical ability, and in personality. Group dynamics are important, and understanding all aspects of interaction are critical in finding the best talent.

    Reply
    • Hi Chris,

      Thanks for the comment. I have a post going live next Monday that is a re-post of an article I wrote that was just published for HRO Today. It discusses in more detail “social media discrimination” as far as offering potential vendor solutions to help HR and hiring managers still take advantage of social media and social media recruiting while also working to avoid risk. These are tools that your employment law attorney has no idea about.

      JMM

      Reply

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