In today’s ubiquitous social media environment, employers face tremendous risks when utilizing social media as part of the hiring process. Even the most stringent recruitment process can become infiltrated with discriminatory practices, whether it’s intentional or not. Human resources professionals continue to struggle with this. Do qualified candidates get passed over because of content on Facebook? Perhaps after an initial web search, a recruiter decides not to schedule an interview. Was this decision based on appearance? These fine lines can be easily blurred in the hiring process.

Researchers at North Carolina State University found that employers who screen the social media accounts of job applicants alienate potential employees – making it harder for them to attract top job candidates. In some cases, social media screening even increases the likelihood that job candidates may take legal action against the offending company.

Federal, state and local anti-discrimination laws protect an applicant from unfair treatment in the hiring process based on the applicant's membership in a protected class. Laws such as Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance all generally prohibit the consideration of any protected class information in making employment decisions.

While benefits managers use LinkedIn to search for online resumes, they’re using other social media sites to fulfill the character reference — and this could be dangerous. HR professionals need to understand the risks of using sites like Facebook, Pinterest, Twitter and others. Used the wrong way, they could have serious legal implications.

Typical Facebook pages are chockfull of information about a member's protected classes. So, when a manager knowingly searches a profile to determine race, physical appearance, etc., it puts the organization at risk. It’s silly to think that HR managers can visit a social media site and completely ignore the information right in front them include age, race, color, religion, marital status and sexual orientation. Other than being of legal age, no other data point here should be a determining factor — especially the way a person looks.

Here’s an analogy: An attorney mounts a compelling statement against a plaintiff during a trial — one that the judge later orders to be stricken from the record. Well, even though an HR manager strikes it from the official record, it’s still something that manager will remember and potentially use to influence a decision. Yes, potential candidates need to be more careful about what they post online, but HR professionals still have the burden of improper use when a serious complaint arises.

Michael S. Cohen, partner at Duane Morris, LLP, concentrates his practice in the areas of employment law training and counseling. 

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