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Discrimination in Hiring via Social Networks

2009 April 28



Discrimination isn’t in itself a bad thing, which is a hard concept to get across to my undergraduate classes.  In order to make good hiring decisions, you have to discriminate: this person has more experience, that one has a more favorable personality profile, this one has a better college GPA, and so on.  It is only illegal to discriminate on the basis of a protected class: race, color, religion, sex, and national origin are the traditional protected classes, while special protections also exist for those over the age of 40 and those with disabilities.

I mention it now because of a recent story about an 87-branch Texas-based bank chain forbidding the use of social networks by its hiring managers when making selection decisions.  This isn’t actually illegal – if a hiring manager who doesn’t know you can find information about you on the Internet, that information is considered public, and thus legal to use in making a hiring decision. So if you thought that your Facebook profile picture with a headshot of you drinking a mug of beer bigger than your head might lower your chances to get a job… well, you’re probably right.

But there’s a gray area.  Even though this information is technically public, it’s also likely to contain tidbits that an organization is not allowed to ask about – such as an impending or current pregnancy.  The following example from the article makes it pretty clear:

“If you hired her and you didn’t know [about the pregnancy] and then she had attendance issues, you could fire her — it’s a legal reason,” Solomon says. “But the fact that you didn’t bring them on board to begin with, that would be hard for the employer, once they’d been exposed to illegal information, to be able to demonstrate that it wasn’t the fact that she was pregnant, it was something else.”

The key here is that it’s not that illegal discrimination actually occurred – it’s that it could have occurred.  And because the organization can’t prove that it didn’t, it leaves a large lawsuit-shaped loophole.  This Texas-based bank chain has chosen to close the hole by preventing hiring managers from accessing that information in the first place.  But is that too far?  Are social networks a valuable source of public information for hiring managers to get a better idea of who they might be selecting into the organiation, or does accessing such information represent a breach of privacy?

Or perhaps even more pointed – is it the responsibility of the company not to access this information, or is it the responsibility of the applicant to properly safeguard this information in the first place?  I don’t know that I have an answer.

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4 Responses leave one →
  1. April 29, 2009

    I think a key point here is that oftentimes Facebook etc. information is used by managers who are not necessarily well-versed in what constitutes illegal discrimination.

    There was an interesting SIOP panel discussion about this, and they brought up some interesting points. First, if one applicant has a FB account, and another does not, you are essentially adding an additional hurdle for one person and not another. In addition, because pictures are often posted without context, you may believe you know what you are viewing when you actually do not. For example, an image of an applicant laying on the floor might suggest drinking to the point of passing out, when it could actually a disability-related issue. I would say for organizations, it would be wise to not use FB and other social networking sites to screen out applicants– we don’t yet have a sense of how useful this information really is in terms of performance, and I think the risk of using information gained inappropriately is too great.

  2. April 29, 2009

    While adding extra hurdles for applicants because they have a FB profile (versus those that don’t) is probably unwise, it’s not illegal, is it? As long as you aren’t in the gray area mentioned above, anyway.

    Regardless, I suppose I agree to recommend against using this information. After thinking on it, it seems a lot like the trouble brought by unstructured interviews – you’re not allowing everyone to operate on a level playing field, so there’s no frame of reference for the hiring manager, ultimately just increasing the noise (as in signal-to-noise) that the hiring decision is based on.

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