Facebook Frenzy Over Password Privacy Misses the Bigger Legal Point: Most Social Networking Profile Content is Off Limits for Hiring Decisions
Unless you took an early Spring Break on a deserted island over the last week, you've seen the explosion of media stories surrounding the practice by some employers of asking applicants for their Facebook passwords in order to view a profile (or Wall) that is set for viewing only by the individual's "friends," and therefore not publicly accessible.
The reaction was swift and almost universal condemnation of the practice as an invasion of privacy. One law professor likened it to asking for the applicant's house keys, in order to have a look around their personal living space.
Facebook's website focused exclusively on the potential privacy issue: The company strongly condemns the trend and urges users of the service never to share account information: "The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information."
Two U.S. Senators who just happened to be interviewed on National television on Sunday morning (March 25, 2012), called openly for a formal investigation by the U.S. Justice Department to determine whether asking applicants for their password violates the Federal Stored Communications Act. They also called upon the Equal Employment Opportunity Commission to investigate whether the practice itself (presumably just asking for the applicant's password or viewing his/her social networking profiles) runs afoul of discrimination laws. There are rumblings about Congressional hearings and proposed legislation to ban this approach to the pre-employment process.
Turning to the Internet for information about job applicants isn't new. Public and private sector employers often perform Google searches for information on potential new hires and draw tidbits from many sources, including social networking sites. In a study last year of 300 hiring managers and recruiters, Palo Alto-based social networking monitoring service Reppler reported that 76% of hiring managers look at applicants' public Facebook profiles. An additional 56% are looking at Twitter.
Whether the practice of asking applicants for their Facebook passwords is legal or even advisable will be debated thoroughly in the weeks to come. The current Facebook frenzy about password privacy misses entirely the reality for hiring managers and Human Resources professionals: much of the information they are likely to see on an applicant's social networking profiles is simply off limits in any hiring decision. And, this is true even for information that is publicly available.
Under the laws enforced by the Federal Equal Employment Opportunity Commission (EEOC), it is illegal to discriminate against an applicant or employee because of that person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. An employer may not base hiring decisions on stereotypes and assumptions about a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
The California Fair Employment and Housing Act (FEHA) also prohibits employment practices that discriminate against applicants or employees on the basis of race, religious creed, color, national origin, ancestry, physical disability (including HIV-positive status) or mental disability, medical condition (specifically cancer-related conditions and genetic characteristics), genetic information (added in 2012), marital status, sex (including pregnancy, childbirth, or related medical conditions, and gender), age (40 years and older), sexual orientation, and gender identity or expression. It includes discrimination based on a perception that a person is a member of a protected class or is associated with a person who is, or is perceived to be, a member of a protected class.
Personal profiles on social networking sites such as Facebook and MySpace are a rich source of information about an individual: gender, sexual orientation, marital status, number and ages of children, national origin or ancestry of family members, religious affiliations or organizations, even preferred charitable giving. Pictures with family and friends don't have to be risqué to be revealing. Posts about the activities of spouses and children — activities, schools, ages, health issues, etc. — are all conveniently collected in a single location on the applicant's Facebook wall. Employers cannot use the majority of this information for any lawful purpose.
Consider the most common areas of employment discrimination lawsuits based on rejections of a job applicant: age, gender, national origin/race, religion disability and recently, genetic information.
Age Related Inquiries: Most hiring managers in today's environment know that they can't ask applicants for their age, birth year, or even the year they graduated from high school because it might reveal age-related information that they cannot use for any lawful purpose. So, what happens when the same savvy manager logs onto the Facebook profile and stumbles on a flurry of "Happy 50th Birthday," posts from the applicant's friends and family?
It's not a defense to a later age discrimination lawsuit to say, "Well, I didn't ask the applicant for his birthdate." You cannot use it to inform a hiring decision, just as you must ignore the applicant's date of birth if it is prominently displayed on an educational transcript properly obtained to verify the conferral of a required degree.
Gender, Family Status And Related Information: The Equal Employment Opportunity Commission provides the following pre-employment inquiries may be regarded as evidence of intent to discriminate when asked in the pre-employment context:
- whether applicant is pregnant;
- marital status of applicant or whether applicant plans to marry
- number and age of children or future child bearing plans
- childcare arrangements
- employment status of spouse
- name of spouse.
Now, consider the typical Facebook profile: posted pictures with family (including children), postings about school activities for the applicant's children, affiliations that may include religious schools, information that discloses the employment status, chatter about the travails of childcare or spouses, and more.
Religious Questions: Questions about an applicant's religious affiliation or beliefs (unless the religion is a bona fide occupational qualification) are generally viewed as non job-related and problematic under federal law. Do you attend church or synagogue? Do you belong to any outside organizations? What clubs or organizations do you belong to?
From a cursory review of a Facebook profile or "news feed," it is likely that your organization will uncover a lot of personal information. Some of this information will serve no employment-related purpose or will provide information regarding an applicant or employee that would be better left unknown.
National Origin Questions: Improper interview questions include questions about the applicant's "native language," or where parents and grandparents were born. Now, consider the Facebook post that congratulates the applicant's grandparents on their wedding anniversary, including a picture with the creative caption: "Gramma and Grampie's wedding picture from the old country."
Disability Related Inquires Are Strictly Forbidden: The Equal Employment Opportunity Commission's published "Prohibited Employment Practices" states: "As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations. Employers are explicitly prohibited from making pre-employment inquiries about disability."
Acquisition of Genetic Information — Including Family Medical History: Facebook and other social media sites are also a high risk area for acquiring improper genetic information about applicants and employees.
The Federal Genetic Information Non Discrimination Act (GINA) prohibits requesting, requiring, or purchasing Genetic Information about an applicant, employee or family member. And, it defines "genetic information" to include family medical history — down to fourth cousins. The Genetic Information Non Discrimination Act allows acquisition of genetic information that is publicly and commercially available. But, the Equal Employment Opportunity Commission expressly states that this does not apply to the acquisition of genetic information from "social networking sites and online media sources which require permission to access from a specific individual."
A manager who reads about an employee's family medical history on the applicant's Facebook page will not be able to defend against a charge by saying that the information was "commercially and publicly available" if the employee has set the privacy settings to "friends only." This is true even if the employee has previously accepted a "friend request" from the manager, or voluntarily provided his/her password to the employer for a pre- or post-employment process.
If a manager or Human Resources specialist learns protected information by doing a simple Google search, it will likely be an inadvertent acquisition. But, in-depth searches or visiting sites that are likely to uncover genetic information about applicants, employees or their family members violates Genetic Information Non Discrimination Act standards and California law. A post such as: "I can't wait for this weekend, when I'm participating in the Susan G. Komen Race for the Cure in honor of my grandmother and my sister" is enough information to cross the line by providing information you can't possibly use to make an employment decision. Just acquiring the information violates the tough new standards.
Avoiding Unlawful Recruiting And Hiring Practices
This isn't a new area of the law. And, it isn't a "gray" area either. If you cannot properly ask the applicant for the information in a personal interview, you cannot obtain it from any other source and then use it to deny an otherwise qualified individual an equal employment opportunity. The California Fair Employment and Housing Act specifically prohibits employers from asking questions about protected characteristics (or activities associated with those characteristics, such as family status and religious affiliations) unless the characteristic is related to the applicant's ability to perform the job. The California Fair Employment and Housing Act covers employers with as few as five employees.
Managers or others tasked with conducting interviews should be aware of areas involving impermissible inquiries. Remember, disability-related questions are unlawful on their face — the applicant has an automatic discrimination charge without having to prove the information was used improperly to deny employment. With every other area of protection, it is not the question itself which is unlawful — it is how the manager/employer uses the answer.
For example, if an applicant is asked about marital or family status and then is not hired because of those factors, the employer has discriminated on the basis of gender. Likewise, if a manager inquires about a person's age, date of birth or date of high school graduation, and then does not hire the person because of an objective determination that he or she does not have the skills for the job, no discrimination occurred. But, if the manager does not hire the person because of his or her age, and he or she is otherwise qualified for the job, the result is unlawful age discrimination.
Prevention Strategies
Develop concrete pre-employment practices, including background investigations and personal interviews. Then, train your Human Resources staff and managers or supervisors who make hiring decisions on what's lawful — and what's not. Develop a policy on whether the employer will search the internet or social media sites in hiring. If you decide to use social media in hiring, do the searches on applicants consistently and in a uniform manner. Notify candidates in writing about what your company gathers on the web.
Designate a non-decision maker to conduct the search. The individual should be properly trained to avoid improper access and to screen out information that cannot be lawfully considered in the decision-making process. That way, the non-decision maker can segregate the information that can't be used to make an employment decision, and can keep the decision maker from having to later explain how he or she ignored the plethora of information from the applicant's Facebook profile.
Finally, train your decision makers to rely only on objective, job-related requirements for vetting candidates for every job. Then, apply consistent documentation procedures to capture the non-discriminatory reason for the ultimate decision to hire or reject particular candidates.
