Web-Based Screening May Lead to Bias Suits

By Judy Greenwald

Apr. 1, 2008

Employers’ growing use of social networking sites such as Facebook and MySpace to scrutinize job applicants could lead to charges of employment discrimination and litigation, experts warn.

    Observers say that without adequate policies in place, employers may be leaving themselves vulnerable to charges that they are using the data available on the Web sites to cull minorities, homosexuals and other applicants who are members of protected classes.

    With Palo Alto, California-based Facebook alone claiming 66 million active users, more employers are using these popular sites to check out job applicants, observers say.

    A survey of about 350 employers in October 2007 by New York-based, a media company focused on careers, found that 44% of employers use social networking sites to examine the profiles of job candidates, and 39% have looked up the profile of a current employee.

    Observers say “failure to hire” lawsuits are far smaller in number than other types of employment litigation, such as those involving termination or charging retaliation, but they do expect litigation to emerge from employers’ growing use of social networking sites. Use of these sites could be used as evidence in litigation, even if it is not necessarily the primary motivation behind a lawsuit, they say.

    Few firms, however, have formal policies on this issue, experts say.

    Looking someone up on a Web site is not illegal because the Internet is public property, says Sue Murphy, manager of the Nashua, New Hampshire-based National Human Resources Association. “But where the liability starts to come into play is when people are making hiring decisions based on that information without coming back and talking to the applicant,” she says. “I think it is going to be tested in the courts.”

    Observers say employers long ago stopped asking job applicants to submit photos with their job applications to avoid being accused of rejecting applicants on the basis of their age, race or other factors. Today, however, it often takes no more than the click of a mouse to locate an image of an applicant.

    If it is found that employers have been looking at the sites, “I have a feeling you’re probably going to see lawsuits, and the burden is going to be back on the employer to show the protected category” did not enter into its “decision to hire or not hire,” says Anthony Zaller, an attorney with Van Vleck Turner & Zaller in Los Angeles.

    Matthew S. Effland, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart in Indianapolis, says he knows of no decision so far “that says using this information is a violation of some employee’s rights, but the law is notoriously slow to catch up to technology,” and “I very much see this becoming an issue in the future.”

    Non-demographic information also can be found on the Web sites. Miriam Wugmeister, an attorney with Morrison & Foerster in New York, says employers should be wary of laws in some states, including New York, that say employers “can’t discriminate against somebody in employment based on activities they engage in, in their private time,” such as smoking.

    Many states’ laws also forbid making job decisions based on applicants’ political activities, Wugmeister says.

    This issue will lead to increased litigation, at least in the short term, “until some parameters are set” as to what is private and public knowledge, she says. “We haven’t yet settled on where the boundary is,” she says. As a result, “we may see legislation even more than litigation” on this issue, she says.

    “We have good-sense policies,” says Tim DeMello, founder and CEO of Boston-based Ziggs Inc., a firm that helps its clients manage their Internet “online brand.”

    DeMello says that as an employer, he occasionally looks at applicants’ social networking sites to get some sense of their character. If you go to Facebook and see someone pictured with swastikas and then do not hire them, “do you call that discrimination?” he asks rhetorically.

    Employers should have a policy in place that “details what the purpose of the Internet search is,” and that specifically spells out that the firm does not base its decision on race, color or national origin, Effland says.

    Jennifer M. Bombard, an attorney with Morgan, Brown & Joy in Boston, says: “Make sure there’s a legitimate business rationale for rejecting applicants and that your hiring decisions are not motivated by information you found on an applicant’s social networking site. Make sure you can point to a legitimate reason for rejecting” the applicant and document and be prepared to justify that decision, she says.

    Neal D. Mollen, an attorney with Paul, Hastings, Janofsky & Walker in Washington, advises employers to avoid looking at the social networking sites altogether. “I think it’s unlikely employers are going to learn a good deal of job-related information from a Facebook page they won’t learn in the context of a well-run interview, so the potential benefit of doing this sort of search is outweighed by the potential risk,” he says.

    Tim Best, president of Arlington, Texas-based PreScreen America Inc., a background investigation agency, says he tells his clients not to use these sites. If the information an employer learns turns out to be false, and the employer relies on that information in making a decision, the company is in danger of being sued, he says. “It’s at best risky doing that,” says Best, who is chairman of the Privacy and Personnel Information Management Council of the Alexandria, Virginia-based ASIS International, a security organization.

    Refraining from checking the Web sites in the prescreening stages protects “the employer from an unfair inference that they relied on demographic data that was not visible on the application,” says Manesh K. Rath, an attorney with Keller & Heckman in Washington.

    But once the candidate has been met, “I think that employers are entitled to consider the whole of an applicant,” says Rath, who is a member of the Alexandria, Virginia-based Society for Human Resource Management’s expertise panel.

    Gerald L. Maatman Jr., an attorney with Seyfarth Shaw in Chicago, says the pros and cons of seeking out this information should be weighed. If there is a subsequent discrimination suit, and an employer honestly acknowledges having looked at a social networking site, “it makes that case more problematic to defend.”

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

Schedule, engage, and pay your staff in one system with