Employers are turning to social networking sites such as MySpace and Facebook to conduct background checks of job applicants and employees. Social networking profiles allow employers to get a sense of what a potential applicant is like and to check up on activities of current employees. Profiles provide employers the opportunity to search out information about applicants and employees that would otherwise be unattainable.
Personal information including, race, gender, age, sexual orientation and political affiliation that have previously been off-limits to employers is now readily available and can be taken under consideration in the hiring and firing process. For example: an employer is not permitted to ask an applicant about his or her age, however, many profiles contain the individual’s birthday. However, employers should be forewarned as this practice can make them vulnerable to potential liability if it can be established that an employer used this information to unlawfully discriminate against protected groups.
Employers are permitted to hire and fire whomever they want even if it is based on false information as long as they do not violate federal, state and local laws. If am employer decides to view applicant and employee profiles they need to take the time to educate themselves on federal, state and local discrimination laws. In Philadelphia, for example, local laws make it unlawful for employers to discriminate based on sexual orientation, however, sexual orientation has not been deemed a protected class under federal and state law. Should an employer in Philadelphia view an applicant profile and discover the applicant is homosexual, and then decide not to extend the applicant an offer because of the individual’s sexual orientation, the employer would be liable for employment discrimination.
Employers that review job applicants and employee profiles however, cannot use the information obtained to make adverse employment decisions that unlawfully discriminate against protected groups. For example, an employer could be potentially liable for age discrimination if the employer decided not to hire the applicant only after reviewing the applicant’s profile and discovering the applicant is over 40 years old.
It may be viewed as evidence of discrimination if an employer reviews only profiles of applicants or employees that are members of protected classes such as women, African Americans or Hispanic. Employers, however, that review all applicant and employee profiles can still commit unlawful discrimination. An employer could be found to have committed employment discrimination if discriminatory bias affects the employer’s evaluation of the information obtained on all applicants or employees. For example, an employer may view more negative photos of a African American male consuming alcohol in an oversized white t-shirt at a bar than photos of an white male consuming alcohol in a frat t-shirt at a bar. The argument could be made that it was not the public drinking that disqualified the black male applicant, but stereotypes perceived by what the employer observed in photos.
As long as an employer’s adverse employment decision does not discriminate against a member of a protected class, the employer can lawfully use information obtained from a profile as a basis for its decision. For example, the Philadelphia Eagles fired an employee after discovering the employee posted on his profile his dissatisfaction with the teams’ decision not to sign player, Brian Dawson. Whether the Eagles decision to terminate the employee was based on the employee’s actual opinion of the team’s decision or whether it was based on the fact that the employee posted his opinion on a social networking site is immaterial. In either case, the Eagles did not violate any federal or state discrimination laws because its decision to terminate the employee was based on non-discriminatory reason.
To avoid potential exposure employers should resist the practice of viewing profiles and focus on conducting better interviews. Employers that are determined to view applicant’s social networking profiles should make sure that they document a legitimate business rationale for rejecting each applicant and put safeguards in place to assure hiring decisions are not motivated by the information found on an applicant’s profile(s). Employers that decide to review applicant profiles should review every applicant’s profile However, none of these steps eliminate risk of liability. Additionally, employers must understand viewing social networking profiles leaves them vulnerable to employment discrimination claims and will make it more challenging to defend against such claims.