General Employment Discrimination
In 1971 the Supreme Court formally recognized two primary types of employment discrimination, disparate treatment and disparate impact. Cities using information obtained on social media sites to make hiring decisions may be vulnerable to disparate impact and disparate treatment claims.
Disparate impact involves an employer with a practice that has an unintended, but unfair impact on a protected class. An example of disparate impact would be an employer who relies heavily or solely on social media for recruitment which will exclude certain segments of the applicant pool (i.e., older applicants) that may not use social media in the same manner as another group of applicants.
Employers who solely use social networking as a means to hire or recruit applicants may be vulnerable to a disparate impact claim. Disparate impact can occur when a city uses social media as a sole means to evaluate candidates or a when a city only considers applicants who use social media. It can also become an issue when a city shows preference for those applicants who have a more favorable online status as opposed to those who have a limited presence on social media. Perhaps the most concrete risk of disparate impact is that the population on social media networks is not representative of the real applicant pool that exists. This means this practice may be unintentionally excluding certain classes of applicants such as males, minorities, or older Americans. When using social media as a tool for recruiting and hiring, municipalities must be mindful of the fact that there is a marked difference in social media use in varied demographic groups, and even within those demographic groups there is a difference in the types of users that access different social media sites.