Services, Social Media Screening

Are You Violating Protected Classes When Social Media Screening?

The competition for skilled and unskilled talent remains challenging for businesses. In January 2024 Reuters reported 1.45 jobs available for every single unemployed person: an increase from 1.42 in December. Finding workers has become a choice between talented versus trainable for many organizations. When hiring right (or as close to right as possible in a difficult applicant market) is necessary, many recruiters and hiring authorities are looking for any tool available to hedge their bets and make a good choice.

A majority of companies are screening applicants’ social media presence to gain insight into potential hires. A survey by CareerBuilder found 70% of employers screen social media profiles before they make an offer of employment. Of that group, more than half surveyed said they chose not to hire based on the content they found on an applicant’s pages. Another 57% admitted they were far less likely to hire someone with no social media presence at all. Their concern: revealing, unacceptable content was scrubbed.

Benefits versus risk of social media screening

While social media pages may uncover valuable information, they can be a double-edged sword. You want to know if the person you’re planning to hire is a proud, publicly glib racist: you don’t want to know their race. You’re interested in their passion for volunteering for worthy causes: you don’t want to know their other passions.

The risk for business is significant. Uncovering information on social media pages that you otherwise would not have known – and certainly wouldn’t have asked about – can be a threat to your organization. If a candidate is declined employment, can you prove it was because of their qualifications, and not personal or protected information? If you come across content that outlines the challenges the applicant has caring for an ill family member, would you be concerned about potential sick time usage? In an interview, you’d never ask if they had a sick family member they cared for: on social media, it might be impossible to unsee.

What are protected classes?

Protected classes are personal characteristics that are covered under the law. These statuses provide applicants and employees with protection from discrimination in all aspects of employment based on that class. There are laws outlining protected classes at the federal level: some states, counties and cities have additional protected classes. It’s a best practice to check with your state and local Departments of Labor to verify all the protected classes in your area.

Protected classes by jurisdiction

At the federal level, Title VII of Civil Rights Act of 1964; the Pregnancy Discrimination Act, the Americans with Disabilities Act and other laws include the following protected classes:

  • Race
  • Color
  • Religion
  • Sex
  • National Origin
  • Pregnancy
  • Age – over 40
  • Military status, including past, current or future service
  • Mental or physical disability or perceived disability
  • Genetic information
  • Updates to Title VII include sexual orientation and gender identity

Many states add to the federal legislation with additional protected classes. In New York state additional protected classes include marital status and status as a victim of domestic violence.

Michigan, New York City,  Washington, DC, San Francisco, cities in Illinois and Wisconsin prohibit discrimination on the basis of height and weight.

In Illinois having an order of protection, unfavorable military discharge, work authorization status, and language proficiency that is not directly related to job duties are protected classes.

All of these, and many other, protected classes are prohibited from discrimination in any aspect of employment, from recruitment to retirement. Any business decision made based on an applicant or employee’s protected class is a violation of the law, punishable with civil fines, penalties and potential lawsuits. Assuring all employment decisions are made without consideration of protected class is critical for business.

The social media paradox

The problem with social media screening is it provides unfettered access. If they posted it publicly, you’ll see it. If it even hints about a protected class, you’ll know it. Consider the recruitment process: you wouldn’t ask an applicant about their sexual orientation, you know that’s personal information and a violation of the law. But their social media profiles can make clear their preferences. Do you really need to know? Is there any legitimate business reason for that information?

Screening social media pages can result in information you shouldn’t have; wish you didn’t have; and information that can put your company at risk. If an applicant is denied a job, or a worker is denied a raise, promotion or other benefit, can they be sure it was based on a valid business reason, or did their personal information factor into the decision? Sometimes the only way applicants and employees find out is through an Equal Employment Opportunity Commission complaint or a lawsuit. That’s costly for business, financially and reputationally. 

How to screen for credentials without screening for protected class

So how do you make sure you don’t see things you can’t unsee? The only way to be confident you’re screening for information that’s legitimate for your business is outsourcing. Working with a third-party provider, your company can screen for all the things you want to know, and screen out all the things you shouldn’t know.

A qualified social media screener will submit the information pertinent to your company, an applicant’s job history, background information and qualifications. They’ll notify you of red flags, like racist comments, or the ‘I always call in sick on Mondays ‘cause I’m too hungover from the weekend’ posts. Everything else, anything that can put your company at risk, stays in their file and away from your organization.

It’s important to assure your organization adheres to the spirit as well as the letter of employment law. While social media screening is a valuable tool, it’s a risky one. Outsourcing is a best practice for any sized business that wants to protect their company and their reputation.

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