Discrimination in Hiring via Social Networks
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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