We strive to educate our clients and aid employers in ensuring legally-compliant screening. As such, the proliferation of “social media background checks” and the continuous dissemination of false information about their “endorsement” by the FCRA leave us with no option but to provide our take on this new trend. Over the next few months, we will be introducing a series of articles discussing the liabilities and controversial aspects of utilizing Social Media as part of the pre-employment background screening process.

This month’s article will focus on how social media Employment backgrounds can expose employers to “protected class” liability and potential discrimination claims.

 

Protected Class Liability and Violation of Title VII
Have you observed that most employment applications contain the statement “We are an equal opportunity employer”? That disclaimer is meant to inform applicants that their prospective employer complies with Title VII of theCivil Rights Act of 1964.

Title VII protects applicants and employees from employment discrimination based upon their race, color, religion, sex, or national origin. By simply conducting a social media search on a potential new hire, an employer can unknowingly expose themselves to “protected” information about an applicant’s race, color, religious affiliation, nationality and gender.

Many popular social media websites like Facebook.com allow users to provide a great deal of detail regarding their background and lifestyle, including their relationship status (which can thus reference their sexual orientation), their affiliation or prior service with a branch of the military, their physical disabilities and often, their current employer (or status as unemployed).

 

Having access to details about an applicant’s sexual orientation, military service, physical ailments and disabilities, family history and employment status can expose employers to liability for violating any or all of the following statues:

Sexual Orientation

There is currently no federal law banning employment discrimination based on sexual orientation. However, the Employment Non-Discrimination Act is a bill that has been proposed in every Congress since 1994 and would federally prohibit discrimination against employees on the basis of sexual orientation or gender identity. At the local level, several states have passed their own laws that do protect against sexual orientation discrimination in the workplace, and during the hiring process. Please feel free to contact us for information regarding your state’s laws that will affect your company.

Age

Age Discrimination in Employment Act of 1967 (29 U.S. Code Chapter 14)

Disabilities

Americans with Disabilities Act of 1990, Title I

Family History

Genetic Information Nondiscrimination Act of 2008

Military History

Vietnam Era Veterans Readjustment Assistance Act of 1974

Employment Status

Fair Employment Opportunity Act of 2011, which is currently in congress and is likely to pass, due to the high unemployment rate and low numbers of new jobs being created in the U.S.

Let’s utilize a hypothetical scenario:
An applicant applies for a position with an employer. The employer utilizes a social media component in the screening process. The employer identifies the applicant’s facebook.com account which contains information about the applicant’s sexual orientation and religious beliefs. The applicant is not offered employment for an unrelated reason, such as the position being filled by a more qualified applicant. The un-hired applicant then requests a copy of their background check (which is their legal right), hoping to clarify some information as to why they were not hired. If the applicant reviews the report and notices that a social media component was included as part of their background and sees photos or any information in the report that references the “protected” information about the applicant (i.e. their sexual orientation and religious beliefs), the applicant has a potential discrimination lawsuit against the employer!

Social Intelligence Corporation claims to provide “a background screening service that enables employers to navigate the complicated landscape of social media with clear, consistent and insightful results.” Senator Richard Blumenthal and Senator Al Franken have recently written to Max Drucker, Social Intelligence Corp CEO and President, expressing concern and asking for clarification regarding a number of issues including how Social Intelligence Corp’s practices verify the validity and accuracy of the information they collect, how they differentiate between employees with common names, how they avoid violating the terms of service of the websites from which they collect information, if not how they are able to access information that is restricted from public view, how they avoid violating the law, and the like. This letter was issued Sept. 19th, and is currently awaiting reply. To view the letter in its entirety, visit http://blumenthal.senate.gov/newsroom/press/release/blumenthal-franken-call-on-social-intelligence-corp-to-clarify-privacy-practice

Stay tuned for Part 2 of our series on Risks of Social Media Usage in Pre-Employment Background Checks in our November issue.