USA: EEOC cautions employers on using social media in hiring decisions

Epstein Becker Green
Michael F. McGahan

Surveys now reflect the tremendous increase in the use of social media to perform pre-employment screening. A survey cited in The New York Times reported that 75 percent of recruiters research candidates online, and 70 percent of recruiters report that they have rejected candidates on the basis of online information. BNA reports that, at an EEOC training workshop, Edward Loughlin, a trial attorney with the EEOC’s Washington, D.C., Field Office, noted that employers can access through social media a great deal of information that they could not access before and that social media might reveal information showing membership in protected classes. He cautioned that, in reviewing adverse actions in an employment claim, the EEOC will apply the same rules that are applied under traditional Title VII analysis, whether the information was obtained through social media or more traditional means.

Employers need to set guidelines for their HR staff on the use of social media in the hiring process. The guidelines should make clear that recruiters should not search online for information that they could not seek on an application or in an interview, such as race, age, religion, disability, union support, and any other class or activity protected by law. Since online searches may inevitably produce such information, guidelines and procedures that exclude such information from the decision-making process should be put in place. Employers may want to consider delaying such screenings to the post-offer stage.

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