Social Media: Disparate Treatment

Disparate treatment occurs when an employer intentionally treats an applicant or employee less favorably than similarly situated individuals because of a protected characteristic. Disparate treatment can affect hiring, promotion, compensation, discipline, discharge, or other terms and conditions of employment.

A city may create disparate-treatment risk if it applies social-media screening differently to applicants for the same position based on, or because of information revealing, a protected characteristic. For example, selectively reviewing the social-media accounts of applicants of one race, sex, national origin, age group, religion, disability status, or other protected class—but not reviewing similarly situated applicants—may be evidence of unequal treatment.

Social-Media Screening Standards
A city that elects to use social media in recruitment or candidate screening should establish a written, job-related process and apply it consistently to similarly situated applicants.

The city should not use social media as its sole recruitment method or as the only means of evaluating candidates. A city should use multiple recruitment methods appropriate to the position and should evaluate applicants based on established, job-related qualifications, skills, experience, and selection criteria.

If the city conducts social-media screening, it should establish in advance:

• Which positions are subject to screening.
• At what stage of the hiring process screening will occur.
• Who is authorized to conduct the review.
• Which publicly available sources may be reviewed.
• What types of verified, job-related information may be considered.
• How the city will document the review and give the applicant an opportunity to explain potentially inaccurate or misleading information.
• What information must not be forwarded to the hiring manager or other decision-maker.

A trained Human Resources professional or other neutral reviewer should perform any authorized social-media review. The reviewer should forward only verified information that is directly relevant to the position. The reviewer should not provide hiring decision-makers with information concerning protected characteristics, medical information, family status, political views, or other non-job-related personal information.

Example
A city reviews public social-media information for finalists for a public-safety position under a written policy that applies equally to all finalists. The designated reviewer discovers credible, verifiable public posts showing that one finalist falsely claimed required professional certification. The reviewer may provide the hiring official with the job-related discrepancy and supporting verification, while withholding information about the applicant’s religion, age, pregnancy, disability, family relationships, political views, or other protected or irrelevant personal information.

By contrast, a city should not review only the profiles of applicants who appear to belong to a particular protected group, or make decisions based on information that reveals protected status.

Tennessee Law
Tennessee law prohibits an employer from refusing to hire, discharging, or otherwise discriminating against an individual with respect to compensation, terms, conditions, or privileges of employment because of race, creed, color, religion, sex, age, or national origin. It also prohibits limiting, segregating, or classifying applicants in a way that deprives or tends to deprive them of employment opportunities because of those characteristics.