Using Social Media During Hiring Process Could Lead to Bias Claims

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While social media tools such as Twitter, Facebook, and LinkedIn allow employers to learn vast amounts of information about job applicants, hiring managers who even casually use these tools to gather information about a prospective employee could expose an employer to legal risks, attorneys and employment consultants told BNA.

They warned that applicants denied employment based on something they posted online could sue claiming they were not hired based on age, race, religion, sex, disability, or other protected characteristics.

“Be extremely careful and cautious to make sure you're not using private information people are posting publicly to make a hiring decision—and your hiring managers are not doing the same thing,” said Jessica Miller-Merrell, chief executive officer of Xceptional HR, a consulting firm in Oklahoma City that specializes in social media.

She offered the following example of a potentially discriminatory hiring decision. “When I found out I was pregnant, I posted it on Facebook,” Miller-Merrell said. “If hiring managers do the math, they might decide, ‘Jessica will be pregnant when our project goes live.' ”

Learning job applicants are pregnant or ill, for example, might prompt a hiring manager to avoid hiring them if the manager believes they might have to take leave from work, said attorney Eric Meyer, a partner at Dilworth Paxson in Philadelphia.

“Or if an applicant is disabled,” he said, “the employer might think that could affect health care premiums.”

Who Should Conduct Social Media Searches?

To avoid such legal obstacles, employers should have someone other than a hiring manager or decisionmaker in human resources conduct an online background check of job applicants, said Stephanie Thomas, founder of Thomas Econometrics, a company in Newton, Pa., that focuses in part on equal employment opportunity compliance issues in hiring.

The individual who does the online check should avoid sharing with decisionmakers any personal information about a job candidate that is not relevant to the hiring decision, Thomas said. “If you share information that discloses protected status,” she said, “using that information in your decision leaves you open to a discrimination claim.”

“To avoid the whole thing, it's better to not even collect that information, so you can say you didn't have access to it,” Thomas added.

Meyer said a firewall between the hiring manager and social media information about job applicants makes it difficult for a plaintiff subsequently to contend that the hiring manager discriminated against him based on a legally protected characteristic.

Checklist Recommended

Molly DiBianca, an attorney with Young Conaway Stargatt & Taylor in Wilmington, Del., said an employer should establish “a defensible procedure it can follow to rebut a claim for failure to hire for protected reasons.”

Such a procedure should begin with a checklist of five to 10 questions developed by HR and legal counsel, she said.

Meyer would agree. “A company could have a checklist of objective standards a background checker could use to determine whether a candidate is fit for the job based on [content on his or her] social media page,” he said.

An example of objective criteria, Meyer said, would be: “Does the person display good judgment?”

DiBianca said an employer should assemble its list based on what is important to the business.

She cited as “legitimate concerns for an employer” racist comments, or in the case of a caregiver, “pictures taken without the consent of a patient.”

DiBianca said the checklist should be used to gather additional information only on the final two or three candidates for a position. In addition, she said, checklist questions should be as clear-cut and narrowly focused as possible, “so there is little room for interpretation.”

DiBianca said the checklist should be given to “someone not involved in the hiring decision.” This employee would then conduct an online search to gather additional information on the job candidate, she said.

“What we don't want is a random supervisor responsible for the hiring decision conducting these searches,” DiBianca said. “That's when true discrimination is more likely to occur.”

After the checklist is completed and given to the hiring manager, he or she could discuss the hiring decision with the applicant, DiBianca said. This would give the job applicant “a meaningful opportunity to explain” or answer any questions the hiring manager might have about information found online.

This interactive process helps eliminate the possibility of a lawsuit, she said.

“Part of the reason failure-to-hire claims are brought is that people never assume they are a bad candidate,” DiBianca said. “They assume there is an illegitimate reason for not being hired. So you have to explain to people why you are not hiring them.”

By Rhonda Smith

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