When you set out to hire someone, it makes sense that you gather as much information about them as possible. Not just professional qualifications, but personal information like their interests and passions, may influence your subjective decision about whether they’ll be a good fit for your company. After all, hiring and training require a lot of your company’s resources, so you have every right to do your due diligence and increase the odds that you new hire will (1) be able to do the job, and (2) stick around for long enough to make the onboarding costs worthwhile.
However, you can get into some sticky situations when you start perusing a potential hire’s social media accounts. Scrolling through someone’s Facebook or YouTube channel may give you more insight into their personality, but it could also give you some information you’re better off not having.
Imagine that you find out from a candidate’s LinkedIn photo that they’re African American. Or from their relationship status on Facebook that they’re married to someone of the same sex. If you opt not to hire that person, you’ve made it possible for someone to argue that you rejected them because of a protected characteristic (such as race, religion, sexual orientation, or age).
If this seems like a stretch, consider what happened at the University of Kentucky. The hiring manager rejected an application for director of a new observatory after their usual vetting process, which included an internet search on the candidate. The candidate’s personal website contained articles and lecture notes that referenced his Christian beliefs, including some personal theories that questioned evolution. When the candidate was rejected, he sued the company for religious discrimination. The court said essentially that it’s possible the university did discriminate based on religion — a jury would have to look at the facts and decide.
Screen Out Information You Don’t Need
There haven’t yet been a lot of cases addressing this issue head-on. That’s why good counsel will advise caution: we just don’t know precisely where the lines are yet. So if you don’t want a jury to be digging into your hiring decisions some day, the best thing you can do is try to screen out unnecessary information like race and religious affiliation when reviewing social media. There are a couple ways you can do that:
- Hire a third party to do social media background checks. There are companies that provide this service. (Be aware that if you do hire a third party, that’s covered by fair credit protection laws and so you need to get the candidate’s consent to perform the search.)
- Create an internal screen. For example, have an HR person review the social media and summarize the results for the hiring manager, but leave out any protected class information.
Either of these approaches can work. You just want to make sure the person who’s actually making the decision to hire knows as little as possible about aspects of the candidate’s life and identity that could form the basis of a discrimination suit. This practice may seem inconvenient, but it will serve you well if ever an unhappy applicant claims you rejected them for unlawful reasons.
