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Interesting read from BloombergBNA: 

By Michael Bologna  

April 7 — Although social media websites have become powerful tools for recruitment and hiring, employers that rely too heavily on these channels to attract and screen talent might expose themselves to significant legal risks, employment attorneys and recruiting specialists told Bloomberg BNA in recent interviews.

Those risks, they said, might manifest as civil rights complaints filed under Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and/or similar state-based anti-discrimination laws.

The complaints might allege that the employer's use of social media channels such as LinkedIn, Twitter or Facebook uncovered protected class information that was used to disqualify an applicant, attorneys and recruiters said. An alternate theory might assert that the employer's social-media-driven recruiting process created barriers that made it harder for members of a protected class to compete for employment.

Although these legal theories have generated little, if any, litigation to date, practitioners said, there's a lag in litigation involving the use of new technologies in the workplace.

‘Hot Button Issue.'

Stephanie R. Thomas, chief executive of labor and employment consulting firm Thomas Econometrics Inc. in Bristol, Pa., said concern is growing within state and federal agencies that monitor civil rights and labor laws. She noted that the Equal Employment Opportunity Commission hosted a March 12 hearing to gather information about employer use of social media and consider the implications for the laws enforced by the EEOC.

“Is this the hot button issue that everyone is filing suits over?—No,” Thomas told Bloomberg BNA March 31. “But it is something employers need to be concerned about. It is something that the EEOC and the regulatory agencies are concerned about.”

The Society for Human Resource Management has reported that employers increasingly are relying on social networking sites to recruit job candidates. In a survey published in April 2013, SHRM found 77 percent of its members reported regularly using social networking sites for recruiting, up from 56 percent in 2011. SHRM said its members use the sites to locate passive job candidates, search for active candidates, and create interest for hiring by posting information about their organizations.

LinkedIn has become the most important tool for employers using social media. The SHRM report found that 94 percent of employers using social media favor LinkedIn, about the same as the 95 percent who used it in 2011. Fifty-eight percent said they use Facebook, up from 54 percent two years earlier. Finally, 42 percent of human resources professionals said they use Twitter for recruitment, up from 39 percent in 2011.

Some Employers Express Ambivalence

Although enthusiasm is high for social media as a recruiting tool, SHRM found that some employers are ambivalent about such channels for screening job applicants. Only 20 percent of SHRM members said they actively use social networking sites and other online search functions to screen applicants, and 68 percent said they never use these strategies to screen candidates.

Nearly three-quarters of SHRM members in that latter category said they were concerned that such screening strategies would expose their organizations to legal risks.

Thomas, who consults with Fortune 500 clients on equal employment opportunity and compensation, said an important risk associated with social media channels involves accusations of intentional disparate treatment.

She said a job applicant might accuse an employer of using protected class information, gathered from a social media site, to discriminate. The threat is real, she said, because such sites expose the employer to a wealth of information that can't be used during the hiring process.

“One of the challenges of using social media is that there is a lot being posted that could disclose protected class information,” Thomas said. “So for a Facebook page or a LinkedIn page, you might see a photograph. From that you might be able to infer the gender of that person, the race, the ethnicity, the age of that person. You might be able to infer a disability status. You might be able to see this person is pregnant. This is not information you should have when you're making the hiring decision.’’

Can't ‘Unring the Bell.'

Angela Preston, general counsel for EmployeeScreenIQ, a Cleveland-based employment screening and consulting firm, said employers targeted for intentional discrimination would have a difficult time disproving the allegation. At a minimum, Preston said the employer would be forced to acknowledge awareness that the applicant is a member of a protected class based on the social media search.

“Once it is reviewed, it is really hard to unring the bell, so to speak,’’ Preston told Bloomberg BNA March 31. “Once the hiring manager or recruiter looked at the information, it is hard to prove he didn't consider it. It is hard to prove a negative. And the thing with social media and various websites is it is very easy to track who has looked at your profile. The web is a road map for who looked at what.’’

On a second front, Thomas and Preston said exclusive reliance on social media for recruiting might expose an employer to claims of disparate impact, alleging that the employer's recruitment and hiring process barred members of a protected class from being able to compete for employment.

Thomas and Preston said the applicant could assert that the demographic profile of the employer's preferred social media channel eliminated members of a protected class from consideration. Similarly, the applicant might argue that the employer's exclusive reliance on social media to attract applicants had a discriminatory impact on a protected class of applicants without access to online technology.

“If you are relying on only one source, or limiting your sources for the candidate pool, you could be excluding a protected class or putting a particular group at a disadvantage,’’ Preston said.

Risks Remain Theoretical

Despite these concerns, both plaintiffs' and defense attorneys working in the employment arena acknowledged that social-media-driven civil rights claims remain largely theoretical in the current environment.

Brian E. Koncius, a partner with Bogas, Koncius & Croson PC in Bingham Falls, Mich., whose firm usually represents plaintiffs in employment matters, said he is unaware of any plaintiffs making such allegations. Failure-to-hire claims are inherently difficult for plaintiffs, he said. Given the wrinkles of new technology and a climate of relatively high unemployment, he said, such cases would be even harder to prove in court.

“This is a new issue, it is interesting, it is sexier than some other things” in employment law, Koncius told Bloomberg BNA April 1. “But case law, due to the nature of the beast, is about two years behind. Things take time to work through the process. So it will take time to get cases, and rulings and appeals.’’

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