Risky Business

You might be socially discriminating—and not even know it.

By Jessica Miller-Merrell
Companies are using social media as part of their recruiting, candidate selection process, and everyday business operations. With more than 88 billion Google searches conducted monthly, chances are that your HR team, recruiters, or managers are searching the interwebs as part of the candidate sourcing and vetting process. You or members of your team search Twitter, build lists, make friends, and fill positions. Or perhaps you use tools such as to search across social media networks by keyword. Depending on how candidates control their privacy settings on sites such as Facebook, recruiters or managers can learn a great deal of information—information that shouldn’t influence their decision to interview or hire a potential employee, but might.
“That’s where the risk for potential social media discrimination sets in,” says Jon Hyman, employment law attorney and partner at Kroman, Jackson, and Krantz. “Recruiters and those involved in the hiring process often times have limited knowledge of compliance when it comes to the EEO [equal employment opportunity law] or have received limited training in protected classes and their implications when used as part of the hiring and decision-making process.”
According to Title VII, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Age Discrimination in Employment Act (ADEA), a number of classes are protected: age, sex, religion, disability, genetic information, race/color, national origin, and pregnancy.
When it comes to social media discrimination, it is not always black and white. “There is no current case law or examples for employers to fall back on, and there likely will not be for the next two to three years,” says Hyman.
Consider the following scenario. “Imagine that an employer views a candidate’s Facebook profile and sees they have recently ‘liked’ The Susan G. Komen Foundation Facebook fan page. One might assume that the candidate suffers from cancer or is undergoing treatment, and this protected information is factored—although unintentionally—into the hiring decision process. Once that bell is rung, it’s hard to be undone, especially if the company did not have an active social media presence,” notes Hyman.
Many employment law attorneys advise organizations to avoid using social media channels altogether as part of the hiring and recruitment process to remove themselves from potential risk. On the surface, this seems like a safe bet. But consider that in 2011, 36.6 million U.S. job seekers used social media as part of their job search strategies, according to a recent Jobvite study. Companies that opt out of this social media sourcing miss out on a lucrative way to engage active job seekers, which could potentially cost them millions of dollars.
Different social media sites serve different purposes. Take Facebook and LinkedIn. Facebook was developed for more personal use, whereas LinkedIn is a professional networking site. Facebook, which is the largest social network in the world with 800 billion users, is forcing companies to take stock of this new social media discrimination landscape because in 2011, 22.2 million U.S. job seekers found employment through the site. The personal information on Facebook might put employers at risk if they use it in a discriminating way. But LinkedIn in general removes much of the risk since member profiles highlight professional accomplishments. But LinkedIn is not the social network of choice. Americans are spending on average nearly 16 hours a month posting, friending, and gaming on Facebook, and seven out of 10 employees have friended their boss or coworker. The new social order has infiltrated corporate cubicles, virtual offices, and mobile devices.
Conservative companies such as The Hartford and their executives have taken steps to train executives on social networks internally. The company launched a reverse social media mentoring program in 2010 to help senior executives understand the nuances of these sites. Mid-level employees trained senior executives on how to navigate social networks and showed their value for professional growth, development, networking, and learning. The results of the program led the company to open access to Facebook to all employees, increasing their Facebook fan page membership from 2,700 fans to 103,000 fans in two and a half weeks.
As the popularity of social networking grows, both for employers as part of their candidate recruitment process and for job seekers as part of their personal brand building, a number of HR vendors have recently launched tools to help HR and executives mitigate the risk.
One such company is Social Intelligence (SI). SI offers a social media and online background check program that delivers a more comprehensive approach compared to Googling or self-service social networking vetting methods. Plus, their search techniques avoid situations of mistaken identity. Max Drucker, the president and CEO of SI says, “Employers are in a tough spot—on the one hand, if they do not review applicants’ publicly available social media, they expose the organization to workplace risks and negligent hiring. On the other hand, if they conduct the screening internally, they are exposed to a lot of information not legally allowable for hiring such as religion, sexuality orientation, and health status that may lead to a discrimination lawsuit.”
SI provides candidates the opportunity to sign a disclosure that allows the job seeker the opportunity to dispute information found during the social media background check process

Companies that are using an informal social media vetting process can incorporate the following steps to help mitigate risk:
1. Have Candidates Sign a Disclosure Document. Make the
informal process more formal by allowing candidates to disclose information themselves as it relates to social media—but do not ask for passwords or other login information.
2. Treat Informal Checks as Formal. Create process documentation
to outline guidelines for managers. This comes in handy during employment investigations or if the Equal Employment Opportunity Commission comes calling.
3. Separate the Process. Limit the likelihood that hiring
managers and those involved in the decision-making process are unconsciously influenced by protected information by separating it. Use a third party or one internal employee responsible for conducting checks. Many large companies already separate the Internet sourcing process from the candidate interview and selection.
4. Training Your Teams. This might seem like a no-brainer, but
training and constant communication are important when it comes to social media. Social media (and its implications for employers) isn’t a one-and-done scenario. Your training and team communication shouldn’t be either.
Social media discrimination is now a serious consideration for employers. Companies can evaluate vendor options such as LinkedIn Recuiter to limit liability and remove protected information from profiles while also gathering Office of Federal Contract Compliance Programs data for companies that are government contractors. Venture-funded startup BranchOut offers a similar tool for Facebook recruiting called RecruiterConnect.
The widespread use and adoption of social media means that potential discrimination should be on the minds and agenda of corporate human resource professionals and executives. Companies using social media as part of their recruiting and engagement strategies shouldn’t shy away—it’s a great way to engage candidates. But be aware of the risks involved.

Jessica Miller-Merrell is CEO of Xceptional HR and author of Tweet This! Twitter for Business. Follow her on Twitter @blogging4jobs

Tags: Consultants & Advisors, HRO Today Global, Professional Contribution

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