Facebook Faux Pas

Alan Rupe (/authors/421-alan-rupe/articles)

March 22, 2007
The worlds of human resources and high fashion are both susceptible to ill-advised fads.
Parachute pants and mullet haircuts make for some mortifying high school yearbook photos,
but employment fads can result in huge embarrassment and substantial liability for
employers.
Heres the latest craze: check out a prospective employees personal information by
logging on to one of the social networking sites such as Facebook or MySpace for
information not usually available on a job application or at a job interview.
The prevalence of the trend garnered national news attention March 8 when ABC News
reported on the predicament of a Yale law school graduate who alleges she was unable to
find a job because of photos and unfavorable information about her posted on the Web.
According to the news report, 26 percent of employers access social networking sites for
information about employees.
Whose bright idea was this? Certainly not any employer/defendant who has sat with me
at counsel table in a case involving hiring discrimination.
For those of us with teenagers at home, social networking sites are as everyday as
breakfast: announcements of the latest breakups, postings of the weekends parties and
events, and the self-defining "profile." And theres the problem. Surveys indicate that a
substantial number of users of social networking sites routinely divulge critical information
about themselves they would not normally reveal. As the chief security officer for a Silicon
Valley-based maker of encryption software recently stated in an article at NewScientist.com,
"I am continually shocked and appalled at the details people voluntarily post online about
themselves."
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Take a look at some of the self-disclosing profiles on Facebook:
A candidate discloses that he kicked a drug habit, got out of rehab, and is getting on
with his life.
"My Ritalin level must be down today," writes a young prospective employee.
Another candidate posts the comment, "The turning point in my life: attending a
college course on under-represented minorities and the continuing plight of African-
Americans in the white community. "
A job applicant writes: "Nothing is more important to me than the values I have learned
from being a Seventh Day Adventist."
Getting this kind of information before hiring an applicant is tempting for employers who
want to know a little more about the job applicant. But employers are specifically prohibited
from asking applicants questions that disclose information that might allow the employer to
make a hiring decision based on unlawful discrimination. Interview questions causing the
most problems are those questions that give an indication of how old the applicant is, or the
applicants national origin, religious beliefs, marital status or health and physical condition.
Yet the answers to these forbidden questions are almost always posted in the social
network "profile." Consider the applicant whose online profile reveals his recent release
from rehab or her proud affirmation of the struggles with permanent physical difficulties
following her nearly fatal car accident. An employer who refuses to hire such an individual
after accessing this informationeven with absolutely no discriminatory intent, and for
perfectly good lawful reasonswill most likely find itself responding to a charge of
discrimination under the Americans With Disabilities Act. The employer will be explaining
why that information was requested or obtained, and how the hiring decision was based on
other, lawful factors.
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Savvy human resource professionals know not to ask questions that might reveal factors
which, if the basis for a hiring decision, would evidence discrimination. Questions that
directly or indirectly lead the applicant to explain his/her religious beliefs, marital status,
mental health or physical conditions are off-limits. And so searching those networking sites
for information on an applicant is a very bad idea.
An employer with the misfortune of defending a discrimination lawsuit can vouch for the
nearly endless resourcefulness of those plaintiff/employee attorneys whose pictures appear
on the backs of telephone books. An employer with absolutely no intention to discriminate
can easily end up on the witness stand being cross-examined by an employees attorney
because, for example, handwritten notes made during a reference check mention that the
applicant "was proud of his religion." Or maybe a recruiter jots down an applicants
comment that "Im having my silver wedding anniversary this year." Trust me, the employer
is going to be called upon to explain why the company did not engage in religious or age
discrimination.
Plaintiffs attorneys used to have to work very hard to dig up information about employers
and their hiring practices and employees. But Google, Facebook, My Space and other
search and social networking sites have made the job very easy for plaintiffs attorneys.
Heres a not-far-fetched scenario: An individual turned down for a job opening walks into a
lawyers office. "I didnt get the job I applied for. And I had every qualification they asked
for."
"Well," says the resourceful plaintiffs lawyer, "lets take a look at your blog."
If there is anything in the plaintiffs ramblings about anything that brings the employee
within shouting distance of any applicable discrimination laws, the plaintiffs attorney will
invariably say, "I think I can help you."
Employment fads, like those parachute pants, are hasty reactions to pop culture and
social issues, and are not necessarily in line with employment law. It is important to
recognize the difference between the two.
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