Social networks: New hotbed for hiring discrimination claims

Social networking websites are fast becoming a staple of corporate recruiting. Depending on which studies you read, anywhere from 39 to 65 percent of companies use social networking websites to identify and screen potential candidates for open positions.

Sites like LinkedIn, Facebook, Twitter and Ning have made it easier and cheaper for recruiters and hiring managers to access a vast and receptive talent pool, says Jessica Miller-Merrell, an HR consultant who specializes in social media. She notes that there are 600 million active users on Facebook alone who spend between six and 12 hours each month on the site.

In addition, says Miller-Merrell, these sites can offer recruiters a view into candidates' personalities and work styles that they may never otherwise get from a résumé, cover letter or job interview.

Miller-Merrell began using the Web to find candidates for retail jobs in 2001 while working as an HR manager at Target. "I went to dating websites, local, city chat rooms and community forums to source candidates," she says.

This web-based sourcing strategy worked well for Miller-Merrell at Target, and later, at OfficeMax. "About 30 percent of the candidates I sourced in 2007, 2008 and 2009 came from Facebook and Myspace," she says. "My Facebook job seekers in particular had a higher retention rate as opposed to hiring someone from a job fair or newspaper."

But the benefits that social networking websites offer to recruiters and hiring managers in terms of the information they provide about their members also poses a huge legal risk, says Miller-Merrell. Because of the way people meld the personal and the professional on these sites, hiring managers who use them risk factoring inappropriate information about a candidate that they learn through one of these sites into a hiring decision.

For example, a hiring manager checking out a candidate's Twitter feed might find out that the candidate has a health condition. The hiring manager, concerned that the candidate will miss a lot of work or cause the company's health insurance premiums to rise, may pass on the candidate, says Miller-Merrell, which is a form of illegal discrimination, according to the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.

The scary fact for companies and job seekers is that most employers aren't being careful enough with the information they glean about candidates when using social networking websites in their recruiting, says Miller-Merrell.

"They're not cataloging this information. There's normally not a consistent process in place as far as what they do for each candidate, and this is going to create a lot of [legal] problems in the next couple of years," she says.

CIO.com spoke with Miller-Merrell about the legal implications of companies using social networking websites in their hiring processes, the information that employers can and can't factor into their hiring decisions, and the magnitude of the legal risk associated with employment discrimination through social networking websites.

CIO: What are the legal risks associated with using social networking sites to source and screen candidates?

Jessica Miller-Merrell: If you're only using one method [to source candidates], you're missing the opportunity to engage an entire group of individuals, many of whom could be in a protected class [protected from discrimination by federal anti-discrimination laws]. For example, if you're only advertising job openings on Twitter, that's a highly Caucasian tool. There's a large percentage of minorities who aren't on Twitter. If you're only advertising on Twitter, you could be discriminating because you're only getting Caucasians and missing the rest of the population.

The other risk is, if you're a government contractor, you're required each year for each facility you run to fill out an affirmative action plan detailing the people you're recruiting (their ages and ethnicities, for instance) and how you're communicating job openings to ensure you're interacting with a wide and diverse range of candidates. The plan explains how you let these different groups know about your job opportunities. If you're using social media tools in your recruiting, you have to catalogue each and every interaction with candidates through those tools for auditing purposes.

Finally, if you make hiring decisions based on protected information that a candidate provides on the Internet -- if you decide not to hire someone because you find out they're Muslim, pregnant or their child has a health condition -- these are hiring decisions that can get you in hot water.

What information about a candidate -- gleaned from sites like Facebook, LinkedIn or Twitter -- can a recruiter, hiring manager or HR person include in their decision to interview or hire a candidate?

Unprofessionalism, inappropriateness and character are things they can look at: if the candidate talks negatively about the company they're leaving, if they have a lot of photos of themselves drinking. I've talked to several campus recruiters who've told me about tweets from job seekers that say, "I'm really interested in working for Company X," and in the next tweet they're talking about how they just broke up with their boyfriend and are "on the market."

One of the most famous tweets was in 2008: Someone posted on Twitter that they had just received a job offer from Cisco and they had to balance between a long daily commute and the fatty paycheck. Because they used the keyword Cisco, a Cisco employee found the tweet and wrote back, 'Don't worry. This won't be a problem for you. I'm forwarding your tweet to your hiring manager.' The job offer was rescinded.

If they find the candidate is blogging about politics and the candidate's political views don't match the hiring manager's or the company's, can the hiring manager or company decide not to interview or offer the job to the candidate on the basis of their political views?

They can as long as what the candidate is blogging about doesn't indicate that they're part of a protected class.

What information about a candidate can't they factor into their hiring decisions?

They can't discriminate based on sex, age, religion, disability, genetic information, race, color, national origin, veteran status or if the candidate is pregnant.

Isn't this kind of discrimination hard to prove? Isn't it hard for a job seeker to prove that they were turned down for an interview or weren't offered a job because their Facebook page indicates they're pregnant or their child has a health condition, and conversely, can't the employer rely on the "she just wasn't a good fit or didn't have the right experience for the job" cover up?

I can think of a situation at a company where I worked in the past. There was a charge filed with the EEOC. The candidate said he was not hired because he was over 40. The EEOC did an investigation and the company had to settle out of court. When the EEOC pulled the candidate's application that was filed, there was a Post-It note on it that said "too old." That Post-It note cost that company a whole lot of money.

If a company gets five, 10, 15 or 20 of these EEOC charges filed in a short period of time, it starts to raise some eyebrows. The EEOC will investigate the claims, and if the job seekers get their right to sue letters, that's when the candidate has the opportunity to hire an attorney and take their own course of legal action.

Do you think the potential discrimination that these social networking websites enable is going to pose a big legal problem for companies?

A lot of this stuff is a goldmine waiting for the EEOC and other government agencies to latch onto. Attorneys are waiting for this. They can make it into a class action that companies will want to settle out of court for a lot of money to make something like this go away. Even if a court makes a decision that's in favor of the employer and says we don't think you've discriminated, the fact of the amount of hours and money spent remains because they'll be fighting all these EEOC charges.

Do you know of any companies that have been caught in hot water because of the way they used social networking websites in their recruiting/hiring?

Not yet. It's still new.

If a company hires a third-party vendor to check out candidates' social networking profiles, as opposed to doing that themselves, does that get the company off the hook in terms of any potential discrimination liability?

It gets them off the hook a little bit. Many companies will hire a third-party sourcer or recruiter whose sole responsibility is to source people on the Internet. When they find someone qualified, they turn that information over to the hiring manager, and all the hiring manager sees is the candidate's resume, not what the candidate posted on Twitter. That way the hiring manager doesn't have any preconceived biases about the candidate based on the candidate's social networking profiles. Hopefully the company has trained the third party on what they should be looking for and the decisions they shouldn't be making.

Would hiring managers, recruiters and HR professionals be better off not using these sites because of the potential liabilities they present?

I don't think so. There is so much liability it sounds scary, but it's a great way to build a reputation and get to know potential candidates in a new and different way. It would be like not going to a Chamber [of Commerce] event because you were worried you might get sued. You need to go where the people are. If people are spending 12 hours a month on Facebook, companies should be there. If they don't they're missing out on the conversation.

There are also processes companies can put in place so if they do get audited by the OFCCP [The Office of Federal Contract Compliance Programs] they can say, 'These are the processes we take for every person who applies. 'This is how we look for candidates. These are the tools we use.'

Once a company finds out this information -- that a candidate is pregnant or needs an expensive organ transplant, is disabled or whatever -- it seems like it would be impossible not to factor that information into their decision-making about a candidate. How can employers manage this information or this access to information that they're now exposed to?

It doesn't matter if it's hard or not. They're not supposed to incorporate that protected class information into hiring decisions.

The first thing employers can do is provide training -- train anyone involved in the interview process, especially hiring managers, on anti-discrimination law and how social media plays into that. The other thing companies need to do is have some sort of procedure in place for how they use social networking tools in recruiting. If they're using social media to look for candidates or as a background check, they need to document that they have a process for using these tools so that if they are sued, they can demonstrate that they've been consistent in their process, that they're not checking the Facebook pages of only African American candidates.

Meridith Levinson covers Careers, Project Management and Outsourcing for CIO.com. Follow Meridith on Twitter @meridith. Follow everything from CIO.com on Twitter @CIOonline and on Facebook. Email Meridith at mlevinson@cio.com.

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