On March 12, 2014 a panel of attorneys testified at an open meeting of the EEOC on the topic of social media in the workplace. Testifying were Jonathan Segal of Duane Morris, LLP representing the Society for Human Resource Management (SHRM), Renee Jackson of Nixon Peabody, LLP who counsels employers, Lynne Bernabei of Bernabei and Wachtel, PLLC who litigates for plaintiffs, Carol R. Miaskoff the Acting Associate Legal Counsel at the EEOC, and Rita Kittle, senior trial attorney at the EEOC. The purpose of the meeting was to inform the EEOC about the growing use of social media and how it impacts laws that the EEOC enforces. Testimony focused on social media in hiring, social media in the workplace, and social media as a source of discovery in employment discrimination cases.

Defining Social Media

All presenters agreed there is no standard definition of social media and that what constitutes social media is constantly changing and expanding. For the purpose of the meeting, Jackson stated that “social media” will refer to any websites or mobile device applications (“apps”) that allow users to create, post, upload, comment on, interact with, or share content with other users (including the user’s own network, networks of others, or members of the public). Jackson went on to indicate that social media includes things such as:

• Social or professional networking platforms such as Facebook and LinkedIn, which allow users to connect with family and friends and build professional networks;
• Blogs such as HuffingtonPOST, TMZ, and Gawker, and micro-blogs such as Twitter, which operate as online journals, news aggregators, and places for public commentary; and
• Video, image, and text sharing platforms such as YouTube, Instagram, Snapchat, Pinterest, and Confide, where users upload, view, exchange, and comment on videos, images, and text.

Segal indicated that employers use social media for several different purposes: employee engagement and knowledge sharing, such as having a corporate Facebook page or blog to keep employees in remote offices aware of new programs or policies, marketing to clients, potential customers and crisis management, as well as for recruiting and hiring of new employees.

Social Media and Hiring

It is increasingly common for employers to use social media to recruit and obtain information about prospective employees and for applicants to use social media to find and apply for jobs. Segal shared a survey done by SHRM showing that 77% of companies reported they used social networking sites to recruit candidates, up from 34% in 2008. Jackson indicated that some of the activities employers use social media for include:

• Identifying and sourcing potential candidates;
• Improving the candidate experience by allowing applicants to apply directly through social media;
• Learning more about the candidates who have applied to or who are interviewing with the company;
• Validating an applicant’s candidacy against job criteria;
• Validating an applicant’s resume against their professional network profile;
• Evaluating an applicant’s potential organizational “fit”;
• Identifying an applicant’s professional qualifications, communication skills, and well-roundedness; and
• Disqualifying applicants based on negative information found.

Reese v. Department of Interior (National Park Service) is an example at the federal level of a complaint related to identifying and sourcing candidates via social media presented by Miaskoff. In this case, the complaint alleged that she was not selected for a Park Ranger position due to her age (61) and sex (female). She asserted that the agency’s recruitment of younger people for this position through Facebook and other social media put older workers at a disadvantage, because they use computers less often than younger people, and therefore using social media had a disparate impact on workers protected by the Age Discrimination in Employment Act. On appeal, the EEOC affirmed that the complainant had not put forth evidence of disparate impact or preference for younger applicants linked to the agency using social media for recruitment.

Miaskoff noted that recruitment, selection, and employment activities are subject to EEO laws, regardless of the media the employer uses. She indicted that “the EEOC laws do not expressly permit or prohibit the use of specific technologies…. the key question….is how the selection tool are used.” As Bernabei indicates, surveys of hiring managers show that they are increasingly using social media to screen applicants and that employers make determinations on applicants’ suitability. Of course social media websites also display “non-job relevant information that could be used inappropriately for evaluating applicants, resulting in biased hiring decisions.” A person’s profile on many sites include gender, age, sexual orientation, and political philosophy, all of which are protected characteristics under various state or federal laws. Moreover, there is very little data to indicate whether social network derived data accurately predicts job performance.

Several presenters recommended that employers use a third-party consumer reporting agency or a designated individual within the organization (who does not make hiring decisions) to conduct the social media search and filter out any protected class information. As we have previously reported, a number of states have passed legislation (and many states have such laws pending) to prevent employers from requiring access to personal accounts on social media. Maryland was the first state to pass such a law. The law prohibits an employer from requesting or requiring an employee or applicant to disclose a user name or password and permit access to personal social media accounts. Moreover, it prohibits an employer from discharging, disciplining, or otherwise penalizing an employee or applicant for failing to comply with the employer’s request. There are several proposals before Congress to do the same thing at the federal level.

Use of Social Media in the Workplace

Use of social media in the workplace is pervasive. Employees use social media throughout the workday on both computers and mobile devices. The use of personal social media accounts may impact workplace harassment cases. As Bernabei indicates, even if employees post harassing or derogatory information about coworkers away from the workplace, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. As an example, in Guardian Civic League v. Philadelphia Police Department, plaintiffs alleged that the police department created a hostile work environment by allowing white police officers to operate a racist website and to post racially offensive comments while on and off duty. The case against the police department settled for $152,000 plus injunctive relief. In another example, at the federal level, an air traffic controller asserted that he was subject to a hostile work environment based on race and sex, after he found that a co-worker made disparaging remarks about him on Facebook, after he made an office “food run” to Chick-fil-A (Knowlton v. Department of Transportation, Federal Aviation Administration). The employee, who didn’t have a Facebook account learned about it from other co-workers who inferred the alleged harasser was upset that food was ordered from Chick-fil-A because of its purported anti-gay reputation. Later the employee alleged that his regular trainer, who was friends with the alleged harasser, reassigned him to another trainer who began harassing him. The agency dismissed the case, stating that the initial Facebook post was insufficient evidence of a hostile work environment. On appeal, the EEOC reversed the agency’s decision, stating that the negative work atmosphere the employee alleged – including the harassment during training was part of a series of incidents dating to the initial Facebook post.

Social Media in the Discovery Process

There are times when an employee or former employee brings suit against an employer and the employer seeks to gain access to the employee’s social media. Although many of the postings may not be relevant to the litigation some may be relevant such as information that may be embarrassing to the employee or postings that may contradict facts the employee is using to support his claims. Bernabei indicated that if an employee’s “public” postings raise suspicions or red flags sufficient to demonstrate that the employee’s private posts may lead to discovery of admissible evidence, that will often be enough to tip the balance in favor of the rest of the employee’s social media account to be discoverable. Kittle noted that increased efforts to access private social media accounts may deter people from pursuing a charge or lawsuit in the future.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.