Social media in hiring: disparate treatment


A recent survey by SHL Previsor, “Global Assessment Trends for 2011,” indicated that 43% of responding HR professionals currently use informal social media searches as a hiring tool, while 28% use formal social media searches as a hiring tool.

Two previous posts explored the legal implications of Terms of Service agreements as well as disparate impact when businesses utilize social media for identifying and recruiting prospective employees. A third cluster of legal concerns centers more on the individual candidate and how social media are used in hiring decisions.

In that same SHL Previsor survey, HR professionals ranked what candidate data they currently review or plan to review from social media sites in 2011:

  • 61% ~ previous work history.
  • 60% ~ education.
  • 52% ~ recommendations from others (such as on LinkedIn).
  • 32% ~ group affiliations such as community groups or religious groups.
  • 23% ~ pictures.
  • 21% ~ comments or links posted by the candidate’s friends.

I hope you’re seeing red flags waving back and forth with these trends!

In using social media for hiring decisions, we need to remember that many of these sites have unverified identity and content on the user profiles. For example, anyone can create an account on facebook with any user name as long as they provide a valid email address not associated with any other facebook account. Most other social media sites are the same. So a disgruntled former co-worker could create a fake facebook account to smear someone with whom they had workplace conflict!

There are emerging legal precedents with respect to the expectation of privacy for content of genuine user profiles on these social media sites. My personal assumption related to content of my social media profiles is that the “worldwide web” is generally public by definition. However, the layers of security and permission that these sites increasingly make available to users may blur what is public and what is private.

Beyond these broad concerns of content accuracy and privacy, disparate treatment becomes an issue when information from social media is apparently utilized to discriminate against people in protected categories. For example, 32% of respondents on the cited survey are looking at group affiliations, which could include religious affiliations. Similarly, 23% of respondents are examining pictures, which could lead to disparate treatment based on gender, race, or other protected categories.

Disparate treatment issues could then be magnified if additional research is conducted only for certain individuals. An example might be only verifying work history and education on an individual’s linkedin account for those whose tagged facebook photos show them as white males and whose facebook profile indicates they are married.

Given these emergent legal implications of using social media searches related to hiring decisions for specific individuals, several steps are prudent.

  1. Your application materials may need to include a general disclosure statement. “We may review information we find on social network sites.”
  2. You may also want to reaffirm that you do not discriminate on the basis of X, Y, or Z, even if such information is known via social networks.
  3. Standardize what sites you use and what information you seek and apply this to every prospective employee at that step of the hiring process.
  4. For additional protection, you may want to have a different employee conduct the social media searches – one who is not the decision-maker for this step in the hiring process.
  5. The use of a social media website does become an employment record at this point. So accurate and thorough recordkeeping is also essential.

Social media and networks are increasingly robust resources and communication tools in our culture, including our workplace culture. These sets of legal implications related to hiring ~ Terms of Service, disparate impact, accuracy, privacy, and disparate treatment ~ simply require judicious and consistent policies.

Note: The original citation from SHL Previsor is no longer available. It was:

Note: These reflections are not to be construed as direct legal advice from an attorney. If you have questions or concerns regarding risks of disparate treatment in using social media for hiring, we recommend that you consult your business counsel.

Republished with permission (including modest content and format edits). Originally published by Elyse on our employer blog in 2011.

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