Do employers discriminate against candidates during the hiring process base on an observation on their social media profile/s?

December 2009

Researched and written by Aylin Ahmet

The Internet has opened up a whole new way of networking for candidates but has it

given employers another opening to indirectly discriminate against candidates during the

hiring process?

This research paper will investigate how social media tools like Facebook, Twitter and

LinkedIn are being used to search on candidates and discuss the invasion of privacy

using this information to discriminate against candidates during the hiring process. Social

networks are not just for socialising anymore, they are now being used as a job search

and research tool for recruiters and employers. The research paper will uncover

concerns with accessing potential employees social profile information without

permission and using this to assess their suitability for a position with the organisation.

Over the past 20 years the recruitment environment has evolved significantly; from an

era of newspaper advertising and hard copy resumes to a recruiting environment

enabled by technology and the internet with social networks capturing the attention of

millions globally. Recruiting has always been about networking and the more people you

know, the easier it becomes to hire – the internet is now the enabler, connecting people

on a social and professional level. Job seekers are realising the usefulness of these sites

to find jobs, keep abreast of career opportunities and research possible employers. On

the flipside, employers can just as easily research candidates through their online social

networking sites. There are literally thousands of recruiters searching for passive talent

on social networking sites – those who are employed and not actively seeking a new

position – as well as job seekers who are leveraging off these networks to find available

positions (Schawbel, 2009).

Since social networking websites, such as Facebook and Twitter began it has allowed

organisations to create profiles, become active members and start to incorporate these

strategies into their public relations programmes (Watersa et all, 2008). More broadly,

employers are using these networking sites to reach a large demographic audience for

wider business reasons such as employment branding, help launch products,

communicate with customers and increase sales.

If potential employers are examining a candidate’s online social networking profile/s as

research suggests they are, would they consider that information during the hiring

process? What if a potential employer saw a picture of a woman or a man consuming

alcohol? Or if they saw a picture of a female applicant who happened to be pregnant?

What about a candidate using discriminatory/racist language on their profile page? Will

this information negatively influence their opinion of the candidate?

Social networks are online communities that link members based on mutual interests.

Members often create a personalised profile, and connect with others via discussion and

special interest groups. The term social media referring to blogs and social network sites

online have been steering a change allowing worldwide, networked communication

instantaneously (Wikipedia, 2009). Such media describes the online practices that utilise

technology and enable people to share content, opinions, experiences, insights, and

media themselves. Any contribution an individual has made on an online profile can lead

to a prospective employer locating that information and using it when assessing

suitability for an applied position.

The huge number of social networking users makes these sites extremely attractive to

recruiters as possible sources of hire and to hiring managers who want to learn more

about potential hires. The issue arises when a prospective employer can search on

candidates and potentially discriminate based on an observation, such as a profile image

of a same sex couple, a pregnant women or a young family with children.

In a social recruitment survey conducted by online recruiter Jobvite, 68% of 115 small-

and medium-sized businesses use social networking to support recruitment efforts

(Jobvite, 2009). Statistics are indicating that more organisations and recruiters are

researching candidates on their social online profiles. A study conducted by

CareerBuilder surveying 3,169 hiring managers found that 22% screened job seekers

using social networking sites (CareerBuilder, 2009).

For the purpose of the research paper, the social networking sites that will be referred to

are Facebook, Twitter and LinkedIn. Facebook is a social networking site, allowing

members to create a profile the focuses on more personal matters such as family,

celebrations, events and hobbies. Twitter is a free micro-blogging tools that allows users

to send short messages out to their followers answering the Twitter question of “What

are you doing?”. LinkedIn is a professional networking tool that allows you to connect

with other professionals around the world.

Members use Facebook to communicate with friends and share personal information

about their lives with over 350+ million active users globally registered on Facebook

(Graves, 2009). Facebook is the largest social networking tool and is home to both

corporate recruiters and head-hunters, who tend to use it more for background checks

than for recruiting, according to (Schawbel, 2009). In fact, Careerbuilder research found

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that one in five recruiters uses Facebook for candidate background checks. According to

a Facebook Demographics Statistics Report, the number of Facebook users ages 35 to 54

grew by 276% in the last six months of 2008 (iStrategyLabs, 2009).

Twitter is a more recent addition to the social networking phenomenon and emerged

through the tragic event of the plane crash of U.S. Airways flight into the Hudson River

earlier this year with the breaking news released from a Twitter message of a passenger

onboard (Tsoulis-Reay 2009). Twitter members can post links to articles, pictures or

videos of topics of interest. LinkedIn however targets professionals and allows members

to create a profile that describes their professional background facilitating connection

and communication with other professionals. If an employer must review job seeker

information on social networks, LinkedIn may be a slightly safer choice as it’s designed

as a professional social networking site. Its purpose and content is oriented toward

professional, job-related information and contains minimal personal information

(Berkshire J, 2005). Social networking sites extend beyond Generation Y usage, currently,

more than 26 million users (average age: 41), and more than 600,000 small business

owners are logged on to LinkedIn alone (Peopleclick Research Institute, 2009).

Tredinnick (2006) defines social networking sites as those sites driven by “user-

participation and user-generated content”. Having an online social media presence

doesn’t necessarily mean it will be harmful to the individual if a prospective employer

was to search on their profile site. Results from the CareerBuilder survey found that out

of the 3,169 hiring managers surveyed, that 24% have used the information to confirm

their decision to hire a candidate (CareerBuilder, 2009). Generally, a candidate’s

contribution through these online mediums can show an individuals understanding,

intellect and outlook which can be advantageous in their job application. Social media

applications provide a variety of ways for users to become involved with organisations.

Recruiters can gain a better understanding of an individual based on a blog they may

write, compared to a resume that has the same standard fields, such as experience and

education (Schawbel, 2009). With one click, hiring managers can identify a job

applicant's voice and thoughts as well as how he or she may fit into an organisation's

culture and the specific role that needs to be filled. By using these social networking sites

a candidate has many outlets to build on their personal brand and potentially find a job

faster than other candidates in the market.

Generally, during a standard hiring process, recruiters/employers refer to a candidate’s

resume, interview, background, reference checks and other relevant

behavioural/technical tests to determine a candidate’s skill set and suitability for a new

position. This hasn’t changed. However, as the process of recruiting is evolving with the

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introduction of social recruiting referring to an employer “using social media as part of

their recruitment strategy” (Inspecht, 2009); employers now have access to many online

tools with the ability to search on a candidate’s online profiles publicly. A recent survey

by Jobvite reflects this evolution in recruitment, noting that 72% of companies plan to

invest more in recruiting through social networks (Jobvite, 2009). Of those surveyed who

plan to invest more into social media recruiting, LinkedIn is the most popular networking

tool (95 percent), followed by Facebook (59 percent) and Twitter (42 percent) (HR Wire,

2009). The percentage of employers using Facebook rose by almost two-thirds between

2008 and 2009. Through a candidate social media site a recruiter may make a decision

to terminate a candidate’s progression in the hiring process, research indicates that 34%

of hiring managers from the CareerBuilder study have used what they learned on these

social networking sites to reject a candidate (CareerBuilder, 2009).

With a down turned economy, high unemployment and thousands of baby boomers

retiring, the labour market is undoubtedly going to change and organisations have to

adapt to ensure they continue to find the best talent in the market. The job function of a

recruiter is changing, Kathy Taylor; a recruiter based in the US exclaims “instead of

taking 90 days to find people, with LinkedIn you can almost cut that in half” and that “my

searches now will run 35 to 50 days on average because I can search by keywords of a

certain skill set I am looking for." (Hutson, 2008).

When an individual becomes a member of a social networking site, a social profile is

created. You may enter very little information or a lot of information about yourself and

this tends to vary from person to person. For example, Facebook provides an information

page where you can enter various details of your personal life, the questions look like a

direct list of questions that should be avoided during the hiring process. Gender, birth

date, family members, relationship status, sexual orientation and religious views are all

available profile fields. Users may restrict this and other information on their profiles to

selected friends or may leave it accessible to a wide audience. The usefulness of social

networking site profiles often focuses on the information that is being distributed

(Crespo, 2007).

The benefits for the employer are clear and have led employers to find the best talent in

the market by researching prospects through their social online profiles, especially hard-

to-fill positions. If more employers start using social networks to make decisions about

potential job seekers and potential hires, a whole host of employment-related legal

issues would arise. This novelty and excitement around Facebook, Twitter and LinkedIn

has, in many cases, overshadowed the fact that the use of these sites for recruiting and

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hiring carries with it many legal obligations. Anti-discrimination regulations “prohibit

employers from asking job seekers information that would disclose their protected-class

status–that is, religion, age or disability” (Rees et al, 2008).

Using social networks as a source of information about applicants could cause an

prospective employer to discriminate intentionally, or unintentionally, based on

protected-class status such as race, gender, religion and so on, or on the basis of one’s

leisure activities if they do not agree with your own or with your organisational culture

(Peopleclick Research Institute, 2009).

The type of information employers typically observe on a candidates social media profile,

according to a CareerBuilder study (CareerBuilder, 2009) are; lies about qualifications,

revealed links to criminal behaviour, posted information about alcoholism or using drugs,

posted provocative or inappropriate photographs or information, bad-mouthed

comments of previous employers or co-workers, discriminatory remarks related to race,

gender, religion, etc.

Under the Equal Opportunity Act 1995 (Vic), it is against the law to discriminate against

someone because of their age, physical features, marital status, pregnancy, race, sexual

orientation to name a few (Victorian Equal Opportunity & Human Rights Commission,

2009).

In one of the most influential employment discrimination cases in the US, Griggs vs. Duke

Power (1971) recognised two legal theories of employment discrimination, disparate

treatment and disparate impact (Findlaw, 2009). Disparate treatment involves

intentionally treating members of a protected class differently than others. For example,

asking only females about their family during an employment interview and then

rejecting females with children would be an example of disparate treatment. To avoid

disparate treatment claims, it is important that everyone go through the exact same

hiring process, the same steps and the same criteria for selection. If recruiters or hiring

managers only check Facebook or LinkedIn for some applicants or evaluate information

found on these sites in a different way for different applicants, the employer could be

vulnerable to claims of disparate treatment.

In this case Duke Power required applicants to have a high school diploma and pass a

broad aptitude test. Minorities failed these requirements at a significantly higher rate

than non-minorities. Since Duke Power could not justify the high school degree and

aptitude requirements for certain lower level jobs, the court found that they had

discriminated against minorities. The employer may be able to justify the use of the

procedure as job-related and consistent with business necessity, and there may be no

other alternative selection procedures that are equally valid with less adverse impact

(Findlaw, 2009).

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Using social networks as the only source of candidates can be seen as discriminating

against potential applicants that do not have social networking profiles. Employment

lawyer Jacquie Seemann with Thomson Playford Culters, claims that in certain

circumstances employers might be indirectly discriminating against groups of candidates

by not treating all candidates in the hiring process equally (Shortlist 2009). Organisations

can conduct detailed searches or perform a general search of Facebook or LinkedIn

members which will return people and groups associated with the search terms.

Recruiters can then join these groups or ask individuals to be added as a friend for

further access to their profile information. Recruiters can also invite candidates to a

Facebook event (for example, a career fair or networking event) or suggest they become

a fan of the company page to learn more about their organisation. Even more delicately,

if a profile site does not have settings activated, an employer is able to view photos,

videos, comments and personal information from their profile site without the candidate

being aware of the recruiter’s visit to their profile.

“Indirect discrimination occurs where one person appears to be treated just as another is

or would be treated but the impact of such `equal' treatment is that the former is in fact

treated less favourably than the latter.” (VCAT, 2000)

“Any information not directly related to the candidate’s ability to work in the specific role

for the specific company would be seriously under question” (Shortlist, 2009), which

questions the relevance that a candidates social networking profile has. The Fair Work

Act includes “a new set of ‘general protections’ against other forms of discriminatory or

wrongful treatment at work” (Fair Work Act, 2009). “If an employer discovered, via a

social media site, that a candidate had made a sexual harassment or unfair dismissal

claim against a previous employer, and decided not to hire the person for that reason,

they could be found to have breached the general protection provisions.” (Shortlist,

2009). Is this an invasion of our personal privacy or standard business requirement?

“The Privacy Act dictates that companies must only collect a candidate’s personal

information that is necessary for their business,” explains Ms Maynard. Which raises the

question of whether a candidate’s social media profile is relevant to their job application

and suitability for the applied position?

Brett Iredale from JobAdder believes that “recruiters looking at public information made

public by a candidate have every right to do so and that its absolutely legitimate

Facebook and LinkedIn checks are used in conjunction with other candidate credentialing

(i.e. reference checks, resume, interviewing)” (JobAdder, 2009).

Anything we choose to post on the internet on our personal profile sites whether it is

photos, video, documents or presentations, can and will be accessible publicly by anyone

viewing it. By using and accessing Facebook, we agree and are bound to the Facebook

terms and conditions that stipulate that “When using Facebook, a personal profile is set

up, relationships and groups are formed, searches are conducted and information is

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transmitted through various channels whilst still collected by Facebook so that more

personalised features can be targeted at the individual” (Facebook, 2009). Facebook

privacy also states that “we [Facebook] cannot control the actions of other Users with

whom you may choose to share your pages and information” (Facebook, 2009). Profiles

can be set for viewing to up to the third level of connections or simply to the first level

only, depending on the profile owner's settings. This means that the individuals profile

can be viewed publicly with no strict privacy security (Recruitment Directory, 2009). By

using these social networking sites, already we are consenting to have our personal data

transferred to and processed by the networking site to third party providers.

In order to retain control over the personal information and over what information

recruiters can view on social networking sites individuals must take ownership over the

content and privacy settings on their social networking sites. If it’s on their social profile

and it could potentially be harmful to future career opportunities then they must take

responsibility for the content they chose to upload or just don’t publicly display it. In the

media recently, there have been a number of examples of how employees in

employment have caused damage to their position within the organisation. An employee

posting a malicious comment on her Facebook profile, forgetting that she befriended her

boss earlier (see image 1) or in the instance of Kyle Doyle who called in sick one day

and including a status update on his Facebook profile outlining that he wasn’t sick but

still intoxicated from the previous nights outing (see image 2).

Image 1: Sourced from (Inspecht, 2009) - Social Media: Friend or Foe in the Workplace

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Image 2: Sourced from (Inspecht, 2009) - Social Media: Friend or Foe in the Workplace

The difficulty exists when proving whether an employer made a decision to not proceed

with a job application based on an observation on their networking site. How can a

candidate prove that they have been unfairly treated?

Anti-discrimination legislation has been employed to combat discrimination but does it

necessarily still stop people from it, especially when it can be difficult to prove that an

employer has discriminated against a candidate based on an observation on their social

networking site?

Harmers Senior Associate Bronwyn Maynard says “many employers and recruiters are

not aware of their obligations under the existing Privacy Act let alone the General

Protections section of the Fair Work Act that came into force on July 1, 2009 (CareerOne,

2009).

Under the Privacy Act employers and recruiters must:

- Inform a candidate that they have collected personal information about them.

- Explain the purpose of gathering the information.

- Tell the candidate who else will see the information.

If an employer/recruiter is bound by law to maintain all necessary records and contact

made with a candidate during the hiring process, including records related to their

decision and information related to searches and contacts about a position, can this

really be enforceable?

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Candidates can request to see the notes made and information gathered about them

during a recruitment campaign on the recruitment system and request that inaccurate

information be corrected. Furthermore, if the candidate considers the information

irrelevant he or she can then make a complaint to the Privacy Commissioner (CareerOne,

2009). Luckily for recruiters and hiring managers, most candidates don’t realise that

under privacy legislation they are entitled to see notes made about them during the

recruitment screening process. Kate Southam from CareerOne stated that a

spokesperson from the Office of the Privacy Commissioner confirmed that “not one

complaint has ever been lodged by a job hunter” (CareerOne, 2009).

Information viewed by an employer on a candidate’s social networking profile needs to

be carefully assessed as to whether it will add value to the hiring decision. Just because

the candidate has a wall post about being drunk at a party, this should not rule them out

of the job unless they are to be a role model and the image does not fit with that

undertaking (SixFigures, 2009). The question remains whether there is enough

subjective assessment on a candidate’s social profile site that is viewed by hirers without

making it even easier for them to discriminate with all this additional information at

hand?

Social media searching on candidates is still a fairly new recruitment tool with not much

legislation relating to information collected from a candidate’s social networking site. As

the popularity of these websites increases, and statistics clearly indicate huge growth

surges, it is expected to become a more popular recruiting tool for recruiters/employers.

Registration levels are growing daily, around 65% of university students alone in

Australia have a Facebook account for instance, a statistic which has grown dramatically

over the past year (onrec.com, 2007).

A diligent and savvy recruiter is going to make a judgement call based on an overall

objective assessment of the candidate and not just social network site. People are

entitled to use social networks and to share personal information in a social context

without having this information used out of context. If an employer uses this information

to assess a candidate’s suitability for a position, it may bring the judging and

discrimination into the hiring process without much basis for it. A study by (Flashpoint

HR, 2009) urge recruiters to “think about the nature of your organisation, your reputation

in the community, and whether personal information is relevant to the position. You

should also consider employee relations and legal implications such as the

appropriateness and relevance of online searches on candidates.

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If a candidate chooses to make the information on their social networking available to

everyone, it is important to have some discretion in terms of publicly accessed

information. If you're going to make this information available to everyone, it is

important to have some discretion in terms of what you are making public and ultimately

your responsibility. Each individual must take responsibility for the information posted on

their profile sites to ensure it is not to the detriment of their professional reputation.

In conclusion, the research paper has raised a number of questions uncovering ethical

and legal concerns faced by recruiters/employers who source information that is not

directly linked with a candidate’s ability to perform in their role, such as personal

information available on their networking sites. Research is indicating that currently no

legislation or regulations exist to protect job candidates from discrimination of this sort

which raises doubt if a potential employer accesses personal information. This is a

growing concern given the reliance on internet usage in nearly all aspects of people’s

daily lives as people utilise social networks for much more than merely socialising.

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