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Legal Tracker

Facebook Hazards for Employers

10/4/2018 | Did You Know


        Employers who “screen” job applicants by the use of social media expose themselves to claims of discrimination by applicants who may otherwise be completely unqualified for a position. There has been substantial scrutiny paid to practices of employers who ask job applicants for Facebook passwords and access to other forms of social media accounts, but those practices largely have been discussed as potential violations of the applicant’s privacy rights. However, employers also place themselves at risk because employers who view the social media postings of job applicants may obtain information about an applicant which if used as the basis for an employment decision would violate discrimination laws. An employer could learn from an applicant’s Facebook page that the applicant has a disability, an ongoing medical condition, or is trying to start a family. If the applicant is not hired and knows or learns that the employer viewed the applicant’s Facebook page, the applicant may claim that he or she was not hired because of the information the employer learned on Facebook and that the employer discriminated against the applicant in the hiring process because of the employee’s disability, perceived disability, or familial status. Even if the employer had legitimate business reasons for not hiring the applicant, the employer may become embroiled in a lawsuit in which the employer bears the burden of proving that the information that the employer learned from social media was not a factor in the employer’s hiring decision. All employers make subjective decisions in the hiring process, but those who review social media during that process are particularly vulnerable to discrimination claims.