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The pervasive use of Facebook, email, LinkedIn, and other forms of social media “presents new opportunities as well as questions and concerns," according to Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien at Wednesday’s public meeting. The meeting was held to pinpoint the various ways in which an employee’s and an employer’s use of social media, and the blurring of the line between what is considered public and private information, could raise EEO concerns. As with the National Labor Relations Board, the EEOC is yet another federal agency exploring the impact of social media on laws within its jurisdiction.
According to a plaintiff’s attorney who testified during the meeting, “complex questions around discrimination, liability and discovery continue to arise as a result of the proliferation of social media options.” In addition to the pitfalls of basing a hiring decision on a candidate’s protected information discovered via social media, the accessibility of an employees’ social media activities in litigation discovery, particularly when an employee has brought suit against the employer, raises red flags. Both the Commission and witnesses appear to be grappling with discovery issues surrounding social media. Other topics discussed included the use of social media by employers in their hiring practices and to what extent employers might be liable for the social media activities of their employees?
Carol R. Miaskoff, acting associate legal counsel for the Commission, cited a report finding that 37% of employers use social media to screen potential job candidates, and that “34% of employers who scan social media find content that causes them not to hire a candidate.” Miaskoff emphasized that “when an employer or other entity is covered by the EEO laws, their recruitment, selection, and employment decisions and activities are subject to the EEO laws, regardless of the media they happen to use.”
Jonathan Segal, testifying on behalf of the Society for Human Resource Management (SHRM), similarly noted:
The growth of social media has significantly changed the way people communicate at home and at work. These applications present great opportunities for organizations, and many are using social media for a variety of purposes including public relations, internal and external communications, recruiting, and organizational learning and collaboration. In addition to private citizens and private organizations, government entities are increasingly using social media to communicate including the President, Members of Congress and EEOC Commissioners.
Segal focused on the many ways in which employers use various types of social media. For example, he noted that a 2011 SHRM survey found that “68% of HR professional survey respondents reported that their organizations were using social media for external communications, recruiting and marketing to engage clients, potential customers and employees.” A more recent SHRM survey indicates that 55% of organizations planned to increase their overall social media use within a year.
Employers use social media for hiring in two ways, he explained. First, he said, some employers use social media to recruit candidates by publicizing job openings. Second, employers sometimes use social media in their background check process “in order to confirm a candidate's qualifications for the specific position.” A recent SHRM survey found that in 2013, “77% of companies indicated that they were using social networking sites to recruit candidates for specific jobs. That compares to 56% in 2011 and 34% in 2008. Smart employers want to cast as broad a net as possible to reach as many potential candidates as possible and are increasingly harnessing social media as part of their recruitment strategy.”
Segal acknowledged the danger that an employer could obtain information about a candidate’s protected group, but pointed out that an employer may learn this information regardless of whether it was obtained via social media. “While we do not doubt the existence of illegal discrimination in our society, we do believe that most responsible employers recognize that illegal discrimination is not only a legal wrong, it is also bad business.”
Segal also pointed out that there is valuable information that can be obtained via social media that an employer can lawfully consider, which would not ordinarily arise during a face-to-face interview. By way of example, he said individuals might post inappropriate or even racist remarks on their Facebook pages, which would be valuable information for an employer for decision-making purposes. “I have heard it said there are only two times when a person is perfect: birth and the job interview. Social media is but one way to enhance the background check to determine whether a candidate should be hired.”
In questioning the witnesses, Chair Berrien posed the question of whether the use of social media presents new EEO issues or is, instead, merely a new vehicle for existing issues. The Commission appears to be in the preliminary stages of examining social media in the workplace, and its EEO implications. This topic is likely to gain even more attention over the coming years as the use of social media becomes an ever more important means of communicating.
Additional information on the March 12 hearing can be found here.