Social Media and ADA / GINA

Overview
Publicly available social-media content can reveal information that hiring officials should not consider, including disability, medical conditions, pregnancy, race, color, national origin, sex, religion, age, genetic information, veteran or military status, family relationships, political views, union activity, and other protected information.

A city should not conduct social-media screening casually. If it uses social-media screening at all, it should have a written, consistently applied process that identifies the legitimate job-related purpose of the review, limits who may conduct it, screens out protected information, and preserves documentation of the process.

The risk
Social-media profiles may disclose an applicant’s disability, medical condition, pregnancy, religious practices, age, race, national origin, family medical history, genetic-testing information, or other protected characteristics. Once a hiring official sees protected information, the city may face a claim that a later nonselection decision was based on that information.

For example, an applicant’s public post about cancer treatment, a child’s genetic condition, a pregnancy, religious observance, military deployment, or a medical limitation may be irrelevant to the position but could create evidence that a decision-maker had knowledge of protected information. The city should make hiring decisions based on documented, job-related criteria established before reviewing applicants—not social-media content that reveals protected characteristics or personal information unrelated to the job.

GINA caution
GINA generally prohibits covered employers from using genetic information in hiring or other employment decisions. Genetic information includes an applicant’s genetic-test information, genetic tests of family members, family medical history, and information about the manifestation of a disease or disorder in family members.

GINA’s acquisition rules are technical. Information found in a genuinely public source may fall within a limited exception, but social-media content can be especially risky when access is restricted, requires approval, or is intentionally searched to obtain genetic or family-medical information. Even where acquisition may be inadvertent or otherwise exempt, the city may not use or disclose genetic information in an employment decision.

Hiring officials should never search an applicant’s social-media accounts for family medical history, genetic testing, inherited conditions, disability, pregnancy, or other protected information.

Reducing exposure
If the city chooses to conduct social-media screening, it should:

• Adopt a written policy stating the legitimate, job-related purpose and timing of any review.
• Use the same process for similarly situated applicants for the same position.
• Consider conducting any review only after a conditional offer or after the applicant has advanced to a defined stage of the selection process, unless a documented operational reason supports an earlier review.
• Use a trained HR employee, a non-hiring reviewer, or a qualified third-party vendor to conduct the review.
• Instruct the reviewer to exclude and not report protected information, including disability, medical information, family medical history, pregnancy, religion, race, age, national origin, sex, genetic information, veteran status, and other non-job-related personal content.
• Provide hiring officials only with job-related information that is lawful to consider and verified, such as credible evidence of falsified credentials, unlawful conduct relevant to the job, threats of violence, misconduct directly related to the position, or violations of a clearly communicated city policy.
• Preserve a record of the sites reviewed, dates reviewed, reviewer, search terms used, job-related information reported, and the hiring officials who received the report.
• Maintain a separate confidential file for screening materials and prevent decision-makers from receiving excluded protected information.
• Ensure any decision based on social-media content is supported by reliable evidence, consistently applied standards, and a documented job-related rationale.

Third-party reviews and FCRA
Using a third-party vendor does not automatically make a social-media check compliant. When a vendor furnishes a report for employment purposes, the report may be a consumer report under the Fair Credit Reporting Act (FCRA). If so, the city generally must follow FCRA procedures, including:

• Providing the applicant with a clear, standalone disclosure that a consumer report may be obtained for employment purposes.
• Obtaining the applicant’s written authorization before obtaining the report.
• Certifying to the reporting agency that the city will comply with applicable FCRA and equal-employment-opportunity requirements.
• Before taking adverse action based in whole or in part on the report, providing a pre-adverse-action notice, a copy of the report, and the required FCRA summary of rights.
• Giving the applicant a reasonable opportunity to dispute inaccurate or incomplete information before a final decision.
• Providing a final adverse-action notice if the city makes the adverse decision.
• The city should consult its attorney, risk-management provider, or qualified background-screening vendor before using a third-party social-media screening service.

Practical supervisor direction
Do not “Google” applicants, visit applicants’ social-media accounts, send friend or follow requests, ask applicants for passwords, or use personal social-media knowledge in a hiring decision unless the city has an approved screening process and HR has authorized the review.

Key authority

• Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
• Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
• Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.
• Genetic Information Nondiscrimination Act, 42 U.S.C. §§ 2000ff et seq.
• Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq.