Imagine the situation: hiring managers are reviewing applications and are tempted to do a quick social media search to put a face on the resume. But does this mean that companies are taking a legal risk? And if so, what questions do they need to consider?
The privacy issue
Social media has transformed the way individuals and businesses communicate, connect and advertise. It has also drastically changed the recruiting landscape, with 91 percent of companies using it as a tool for posting job listings, promoting testimonials, and sharing employee recommendations to attract candidates.
But now many companies also look at candidate profiles during the recruitment process, with 21 percent of companies admitting to rejecting candidates after searching for them on Facebook.
However, social media presence is voluntary for employees and candidates and is considered to be in the public domain. This means that profile owners do not have to agree to prospective employers having their open profiles reviewed.
While the issue of privacy is relatively clear, especially when a significant amount of information is publicly available, what employers do based on what they see could be risky.
The Discrimination Question
By their very nature, social media profiles and content contain a lot of personally identifiable information that is often not routinely collected as part of the recruitment process. Examples include gender, race and ethnicity, disability, pregnancy status, sexual orientation and religious or ethical beliefs – all protected characteristics under discrimination law.
If this information is viewed by the recruiter and the applicant is rejected, it could be difficult for employers to prove that they rejected the applicant for legitimate reasons. This could expose employers to allegations of unlawful discrimination, particularly if this information is flagged during the decision-making process.
The bias question
For most people, social media is designed for their personal lives, with the assumption that it should have little impact on their professional lives. This must be taken into account by recruiters evaluating an applicant’s professional qualifications. This means that the relevance of the information gathered during a social media search should not be the deciding factor in appointing a candidate.
Just because someone is politically active, has certain hobbies, supports a certain sports club, or enjoys traveling and an active nightlife doesn’t mean they don’t have the potential to be a great employee.
The “red flag” question
Of course, there can be instances where a search on social media will raise “red flags” and thus provide a legitimate basis for rejecting an applicant. For example, a candidate might be very active in posting and supporting misogynistic or racist comments and extreme or offensive political views.
In this case, the employer must balance the information gathered from social media with efforts to get to know the candidate better. If they don’t, they run the risk of having to defend themselves against allegations of bias and unlawful use of social media information.
Recruit with confidence
Today, social media snooping is considered a de facto, albeit informal, part of the recruitment process. But it’s important to remember that there is nothing that compels candidates to share social media profile information with employers during the hiring process. If a candidate wishes to be assessed on the basis of a CV, cover letter and aptitude test, this should be respected.
Employers must carefully consider how they use the information in the decision-making process to avoid the risk of having to defend themselves against allegations of improper or even unlawful refusals.
Mary Walker is a partner and employment law specialist at Gordons
