What the EEOC wants companies to know about social media and employment discrimination

Yesterday, the United States Equal Employment Opportunity Commission held a public meeting at which it discussed, well, you read the lede. Don’t miss this one employers; the full 411 is after the jump…

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(Yeah, I’m playing Bjork. Haters can take a hike…)

As I was saying, yesterday, the EEOC hosted a meeting to gather information about the growing use of social media and how it impacts the discrimination laws the EEOC enforces.

Among those who spoke at the meeting were my good friend, Jonathan Segal (on behalf of the Society for Human Resource Management), and Renee Jackson, an attorney with Nixon Peabody.

Many employment lawyers fall into the trap of emphasizing the legal risks of social media. So, it was refreshing to read in the EEOC press release that Jonathan steered well clear of this popular pitfall:

“Jonathan Segal, speaking on behalf of the Society for Human Resource Management (SHRM), explained that employers use different types of social media for several different reasons: employee engagement and knowledge-sharing, such as having a corporate Facebook page or blog to keep employees in far-flung offices aware of new programs or policies; marketing to clients, potential customers and crisis management; and for recruitment and hiring of new employees.”

Indeed, social media can be a powerful tool to vet job candidates. But, there are risks associated with its use. Imagine reading on Facebook, that an employee who interviewed for an open position at your company, is pregnant. So, if you decide not to hire her — for a reason having nothing to do with the pregnancy —  will your decision still create that suspicion of discrimination? According to the press release, Ms. Jackson — I said, Ms. Jackson — offered some suggestions to avoid all that:

“To the extent that employers conduct a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and only use publicly available information, not requesting passwords for social media accounts.”

I also saw this tweet in which Ms. Jackson further suggested that the non-decisionmaker scrub the search results of all protected class information. No protected class information means no way a protected class can motivate an employment decision. Good plan!

I’d even go another step further, especially when an outside third party runs the search. If social media results do negatively impact a hiring decision, I’d generally give the applicant a chance to explain the “red flag” in the search results. Doing so not only gives the applicant a chance to address information that could be inaccurate or misleading, but it also lowers the chance of a subsequent discrimination claim by identifying for the applicant the non-discriminatory reason for not hiring that person.

Like that time the pic of me modeling edible underwear showed up on my Facebook page. Strawberry boxers, dude! Very distinguished. It wasn’t like I had on thong underwear or anything. Because that would have been weird.

Anyway, for more on yesterday’s social sesh, I have compiled for you every relevant tweet.

And, if you don’t have time for that, here’s a top ten from yesterday’s meeting.


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