Social media has taken the world by storm. A study last year revealed that 72% of adults in the U.S. use social networking sites. This number grew astronomically from the 8% who said they used social networking sites back in 2005. Employers are in on the act too. They are using social media to promote their services and communicate with clients, particularly when in crisis-management mode. Social media is also frequently used as a recruitment and hiring tool. Not surprisingly, that’s where the EEOC has stepped in.
In March 2014, the EEOC held a meeting to address the use of social media by employers. The meeting allowed the EEOC to gather information about how social media use impacts the enforcement of employment discrimination laws. Representatives from employer groups explained that social media is used as a recruitment tool for a number of reasons. Sites such as Facebook and LinkedIn act as a valuable resource for identifying qualified candidates. They also assist employers who want to cast a wide net during the hiring process.
Employee-side representatives pointed to a number of issues associated with increased social media use as a recruitment tool. They claimed that information obtained from social networking sites was susceptible to discriminatory use since many protected characteristics can be gleaned from a candidate’s social networking page, including race, gender, age, ethnicity and possibly even disabled status. Plaintiff’s counsel pointed out that recruitment was not the only area of concern. Social media use by co-workers opens the door to situations of workplace harassment, even if the offending material is posted off-site. If the employer is aware of the postings and does nothing, it could be liable for a hostile work environment claim. One attorney noted that “[t]he issue is further complicated as more employers use a ‘Bring Your Own Device’ policy, in which they require or expect employees to use personal laptops, smartphones, or other technology while on the job.” We previously discussed issues surrounding Bring Your Own Device policies here.
Ultimately, the EEOC’s meeting yielded a few takeaways. Social media use is certainly on the EEOC’s radar. We anticipate that the agency will ask more questions and seek more information related to social media recruitment when it investigates and processes charges. Because of this, employers should review how social media is being used in recruitment efforts. To the extent that employers are conducting social media background checks, we suggest that third parties or employees who are disconnected from the hiring decision perform the search to insulate the decision makers from allegations of unlawful bias. In addition, employers must investigate all employee complaints of harassment, even if the offending material was communicated over social media platforms. Finally, all recruiting and social media policies and practices should be updated to reflect that proper steps are being taken to avoid discrimination and/or harassment in the workplace. Contact the attorneys at Skoler Abbott if you need assistance updating these policies.