Employment decisions based on information from social networking sites such as MySpace and Facebook raise many interesting legal questions. Today, I’ll look at a few possible discrimination issues that suggest such sources should be used with caution.

Perceptive readers may note that the last post was Part I. What, then, became of Part II? Well, last week’s Part I was a republication of a post that had originally appeared elsewhere, and had originally been followed by Part II. Follow?

In Part II, I cautioned against the risk of thinking that old wisdom no longer applies in the Internet Age and thus forgetting key lessons learned long ago in connection with other means of communication.

Today, another example:

Conventional wisdom — In employee recruiting and hiring, there is such a thing as “too much information.” Some facts should remain unknown; ignorance can be a great defense to a discrimination claim.

Internet truth — The same principles apply. But now, with so much information easily available on the Internet, there is a powerful temptation to ignore the conventional wisdom and risk obtaining “too much information.”

The mix of information on social network sites

Personal profiles on social network sites like MySpace and Facebook typically contain a seamless combination of the type of facts that would be on a resume with much more personal, non-job-related information.

For example, looking at a potential employee’s profile, one may see information on their education, work history, and career interests, alongside lists of their favorite music and movies, vacation and party photos, family information, blog entries, links to profiles of their friends, and much more.

Conventional wisdom on limiting information obtained regarding potential employees

Under the conventional wisdom, human resource professionals and others conducting employment interviews are trained to avoid certain types of questions. Contrary to what many believe, most such questions are not strictly speaking illegal. Rather, they are inadvisable because there is no legitimate, job-related reason for asking them, and they are suggestive of unlawful discriminatory motives.

For example, one should not ask applicants about their age, marital status, or whether they have children. Doing so suggests intent to discriminate on the basis of age or sex (if male applicants are not asked the same family-related questions).

The flipside is that ignorance of facts related to legally protected characteristics (race, sex, age, etc.) may be a powerful defense to a discrimination charge. (One can’t have based a decision on an unknown fact.)

Certainly, some facts become obvious in an interview (e.g., race, sex, age significantly over 40). But at an earlier stage of screening resumes and applications, they are likely to be unknown. And other facts (e.g. marital status, children) would come out only in response to questions or if volunteered.

These principles lead to the conventional wisdom that information obtained about applicants should be carefully constrained to that which is relevant to the job requirements, with potentially sensitive information scrupulously avoided.

The Internet risk

Social network sites may be useful for two distinct functions in the hiring process:

1. Identifying potential passive candidates to contact. The vast databases of these sites can be searched in various ways, looking for individuals based on education, employment history, interests, etc.
2. Background checking. Disqualifying information may be disclosed, such as illegal drug use.

However, when an individual’s profile is viewed for either of these purposes, additional information may be obtained that would be scrupulously avoided under the conventional wisdom approach.

Profiles typically include photos disclosing race, sex, and approximate age. MySpace specifically solicits age and sex information and lists it prominently. Profiles also often mention sexual orientation and marital status, and photos and narrative information often disclose parental status.

Some people disclose their experiences fighting various medical conditions and disabilities on the Internet. See: “Illness used to be considered a personal and intimate matter, and of course it is. But publicizing your struggles with it can save the lives of strangers.” It is not unusual for such struggles to be mentioned in blogs or social network profiles.

But in the hiring context, knowledge of conditions that may be protected disabilities is best avoided unless disclosed unilaterally by the potential employee — or obtained after a conditional offer of employment has been made.

Hopefully, the foregoing makes clear the risk of “too much information” from reliance on social network sites. At the same time as useful, job-related information may be obtained, non-job-related information may also be obtained, including information regarding protected characteristics (race, sex, age, disability, etc.). The inference of discriminatory intent is weaker than if the information was obtained from a direct interview question, but the defense of ignorance is unavailable.

To those who believe they can still claim ignorance because no one will know what they did with their computer, I would point out that the combination of Internet recordkeeping requirements with electronic discovery in litigation means that your electronic tracks will be hard to avoid.

Additionally, at least with blogs, authors typically track visitors and often can tell when a corporation views the blog. What if I see that you the employer view my blog the day after receiving my application, and then next week I call and learn you’re not interested? Or worse yet, you lie and tell me there are no openings? I may suspect that something on the blog influenced the decision, maybe a protected characteristic . . .

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George Lenard on Employment Law, HR Technology, Hiring, Hiring, Human Resources

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