A Facebook Invitation for Trouble: Legal Issues of Internet Sleuthing and Employee Posts, 0318 SCBJ, SC Lawyer, March 2018, #18

Author:Emily Bridges, J.
Position:Vol. 29 Issue 5 Pg. 18
 
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A Facebook Invitation for Trouble: Legal Issues of Internet Sleuthing and Employee Posts

Vol. 29 Issue 5 Pg. 18

South Carolina BAR Journal

March, 2018

Emily Bridges, J.

Social media is inescapable, whether it’s your aunt’s posts on Face-book, a political argument erupting on Twitter or an Instagram picture of your friend’s pancakes. Many people share their daily movements, thoughts and habits on their personal social media accounts. These accounts can be a wealth of information for a prospective employer, but using the information learned from these sources during the hiring process can create problems. Additionally, employees often use their own social media accounts to make comments about working conditions, fellow employees or their supervisors. While employers may want to discourage this type of behavior, taking action against an employee who posts such information could violate federal or state laws.

Federal law prohibits employ-ers from considering a variety of factors in their hiring decisions. These include race, national origin, religion, gender, age and disability.1 Numerous states have also passed laws prohibiting discrimination based on sexual orientation and gender identity.2 However, a social media search could provide this information to a prospective employer, and employers must be cautious that, should the employer learn it, this information does not have an impact on any hiring decisions. Discrimination laws apply even during the hiring process, and plaintiffs have had some success when asserting claims for pre-hire discrimination.

In Gaskell v. University of Kentucky,[3] the plaintiff asserted claims based on alleged religious discrimination. In 2007, the University of Kentucky was planning to hire a founding director for its new observatory. Gaskell applied for the position, and there was no dispute that, based on his application, Gaskell was a leading candidate.[4] Gaskell was then invited to participate in a phone interview, after which he was at or near the top of the list of candidates for many members of the search committee.5 One of the members of the search committee conducted an internet search for information about Gaskell and found a link to his personal website, which included an article entitled “Modern Astronomy, the Bible, and Creation.”6 The committee member became concerned that Gaskell espoused views supportive of a creationist theory of evolution, which was not supported by the university. There was no evidence, however, that his personal views impacted his teaching or his other credentials. The biology department at the University of Kentucky expressed concern about Gaskell’s alleged creationist views and claimed it would not support his hiring based on these views.7 Gaskell was not hired for the observatory director position and he sued the university, claiming that the university discriminated against him based on his religious beliefs.8 The University of Kentucky fled for summary judgment, but the court denied the motion.9 The court found that Gaskell had presented direct evidence of possible religious discrimination, meaning there was a question as to whether his religious beliefs were a substantial motivating factor in the decision not to hire him.10 Ultimately, Gaskell settled with the University of Kentucky for $125,000.11

The pro se plaintiff in Nieman v. Grange Mut. Cas. Co.12 survived the defendant’s motion to dismiss his claims of age discrimination. The plaintiff had included his college graduation date on his LinkedIn profile, and the potential employer asked and confirmed it was the correct year.13 The plaintiff claimed that it would not have been difficult for the prospective employer to determine that someone who graduated from college in 1989 was over the age of 40 in 2010, placing the employer on notice that the plaintiff was subject to statutes and regulations concerning age discrimination. The individual who was hired obtained his college degree in 1994, making him younger than 40 in 2010. The court denied the company’s motion to dismiss, stating the plaintiff had provided sufficient evidence to state a claim for discrimination.14 While there is no further information about the resolution of this case, it shows how easily an employer can mistakenly learn information in a social media search that could expose it to allegations of discrimination during the hiring process.

Given the possible pitfalls of such social media searches, the question then becomes: Is the information that could be learned worth the risk? The answer will be employer and industry-specific, but there are certain ways an employer can try to protect itself. First, have someone in the human resources department or who is separated from the actual hiring process conduct the search rather than the future direct supervisor or someone in a hiring position. This ensures that the individual who makes the final hiring decision is not influenced by any of the unlawful considerations. Second, document the internet search. An employer could create a form the individual conducting the search completes in order to ensure that the search is applied consistently for all applicants. Additionally, the web pages on which any relevant information appears should be printed and included in the applicant’s file in order to provide supporting documentation. Third, employers should treat any negative information discovered carefully. The applicant might not be responsible for the image or post, or it might not even be the candidate. Fourth, an employer should never ask for the applicant’s social media usernames or passwords, or access a website beyond that which is public.15...

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