Social Media: Disparate Impact

General Employment Discrimination
Employment-discrimination claims generally arise under two different theories: disparate treatment and disparate impact.

Disparate treatment occurs when an employer intentionally treats an applicant or employee differently because of a protected characteristic, such as race, color, religion, sex, national origin, age, disability, genetic information, or another characteristic protected by applicable federal, state, or local law.

Disparate impact may arise when a facially neutral employment practice disproportionately excludes or adversely affects members of a protected group and is not justified by applicable legal standards. In Griggs v. Duke Power Co., the U.S. Supreme Court held that Title VII prohibits artificial, arbitrary, and unnecessary employment barriers that operate to exclude individuals based on a protected characteristic when the employer cannot show that the practice is related to job performance.

Social Media and Hiring
A city should not use social media as the sole or primary source of recruitment, applicant screening, or candidate evaluation. Reliance on only one social-media platform, or on social media generally, may limit the applicant pool and could create legal and practical concerns if it disproportionately excludes qualified applicants who do not use that platform, lack reliable internet access, maintain private accounts, have limited online activity, or choose not to participate in social media.

A city should use recruitment methods that reach a broad and diverse pool of qualified applicants. Depending on the position, appropriate methods may include the city’s website, public job postings, professional associations, trade publications, local or regional job boards, workforce-development organizations, public notices, and other appropriate recruitment channels.

The city should not prefer applicants merely because they maintain a more extensive or favorable social-media presence. A limited online presence, private social-media account, or absence of social-media activity is not a reliable measure of an applicant’s qualifications, character, ability, or suitability for employment.

Screening Standards
If the city conducts a permitted review of publicly available social-media information, the city should use written, job-related criteria that are consistently applied to similarly situated applicants. Social-media information should not replace an interview, a lawful background check, verification of qualifications, reference checks, or other established hiring procedures.

A trained human-resources professional or another designated reviewer should conduct the review and provide hiring decision-makers only verified information that is directly relevant to the position. The reviewer should not forward information concerning protected characteristics, family or medical information, political viewpoints, or other non-job-related personal information.

Before acting on adverse online information, the city should provide the applicant a reasonable opportunity to explain or correct information that may be inaccurate, incomplete, misleading, altered, taken out of context, or associated with the wrong person.

Current Federal Context
On April 23, 2025, President Trump issued Executive Order 14281, Restoring Equality of Opportunity and Meritocracy. The order directs federal agencies to deprioritize enforcement of laws and regulations to the extent they rely on disparate-impact liability and directs federal agencies to review existing disparate-impact regulations, guidance, and pending matters.

In June 2026, the Department of Justice issued an Office of Legal Counsel opinion concluding that the EEOC’s then-existing disparate-impact guidelines under Title VII were unconstitutional. This represents a significant change in federal executive-branch enforcement policy and guidance, but it does not itself amend Title VII, repeal statutory disparate-impact provisions, or automatically eliminate potential claims under federal, state, or local law.

City Policy Guidance
A city should maintain a written recruitment and social-media-screening policy that:

• Uses multiple recruitment channels appropriate to the job and community.
• Prohibits hiring and employment decisions based on protected characteristics.
• Limits any social-media review to verified, job-related information.
• Prohibits considering an applicant’s lack of social-media activity as a negative factor.
• Requires consistent application of screening criteria.
• Separates the social-media reviewer from the final hiring decision-maker when practicable.
• Requires Human Resources and legal review before adverse action based on social-media information.
• Preserves records in accordance with the city’s retention requirements and applicable law.

Tennessee’s employment-discrimination law prohibits employers from refusing to hire, discharging, or otherwise adversely affecting an individual because of race, creed, color, religion, sex, age, or national origin.