Social Media: Discrimination

Discrimination and Protected Information
Social-media profiles may reveal information that is unrelated to an applicant’s qualifications but protected by federal, or state employment laws. Examples may include race, color, religion, creed, national origin, sex, sexual orientation, gender identity, pregnancy, age, disability, genetic information, marital or family status, military status, political affiliation, or other personal information.

Social media also may reveal direct or indirect information about an applicant’s medical condition, disability, family medical history, or genetic information. Before making a conditional job offer, employers generally may not ask disability-related questions or require medical examinations, except in limited circumstances. Employers also may not use genetic information in employment decisions.

A city may not make hiring, promotion, discipline, termination, compensation, or other employment decisions because of information relating to an individual’s protected status. For example, a hiring manager who views an applicant’s public social-media profile and learns the applicant is pregnant may not allow that information to affect whether the city extends a job offer. Pregnancy discrimination is prohibited sex discrimination under federal law.

Federal law prohibits employment discrimination based on race, color, religion, sex, national origin, age, disability, and genetic information. Tennessee law also prohibits employment discrimination based on race, creed, color, religion, sex, age, and national origin, among other applicable protections.

Social-Media Review Protocol
Because social-media screening may expose a reviewer to protected or otherwise non-job-related information, a city should use a consistent, written procedure for any social-media review connected to hiring, promotion, discipline, or another employment decision.

The city should designate a trained human-resources professional or other neutral reviewer to conduct permitted social-media screening. The reviewer should:

• Review only publicly available information and should not request applicants’ or employees’ social-media usernames, passwords, private-account access, or access through a third party.
• Apply the same review process to similarly situated applicants or employees.
• Document only verified, job-related information relevant to the position or employment decision.
• Avoid forwarding protected-status information, medical information, family information, political views, or other non-job-related information to the hiring manager or decision-maker.
• Give an applicant or employee a reasonable opportunity to explain or correct potentially inaccurate, incomplete, misleading, or misidentified online information.
• Preserve records only as required by the city’s retention policies and applicable law.

The city should use only legitimate, job-related information when making employment decisions. Examples might include credible public evidence of threats or violence, unlawful conduct relevant to the job, disclosure of confidential city information, serious conflicts of interest, material misrepresentations about qualifications, or conduct directly inconsistent with an essential position requirement.

Policies and Risk
A city should adopt a written policy that explains whether and how social media may be used in pre-employment screening, background checks, employee discipline, harassment investigations, and other employment decisions. The policy should identify authorized reviewers, job-related review criteria, documentation procedures, nondiscrimination safeguards, confidentiality requirements, and approval processes for adverse action.

The policy should not treat social media as a substitute for lawful, consistent background screening. A city may face risk if it relies on inaccurate online information, applies social-media screening selectively, makes decisions based on protected information, or uses a third-party social-media screening report without complying with the Fair Credit Reporting Act and any applicable state law.

Protected Inquiries
A useful rule is: if a city would not lawfully ask an applicant a question during the relevant stage of the hiring process, it generally should not seek or use that same information through social media.