On December 9, 2009, Facebook changed the privacy settings that apply to its over 350 million users. The most controversial of these changes is that certain information about each Facebook user is now always publicly available, and Facebook users have no way to alter this setting. The information now publicly available is each Facebook user’s name, profile picture, current city, gender, networks, list of friends, and list of “Pages.” Through these new privacy settings, Facebook has also unwittingly set some users’ photo albums to public. This setting can be altered, but unless the user takes steps to adjust the setting, the albums will remain public. The availability of this public information is both a potential goldmine and a minefield for employers using Facebook to conduct pre-employment screening of applicants.
Prior to the privacy setting changes, individual Facebook users could select whether their name, profile picture, current city, gender, networks, list of friends, and/or list of Pages would be publicly viewable, or whether only friends or “friends of friends” could view that information. Indeed, prior to the changes, users had general control over what, if anything, the viewing public could see on their Facebook profile: some users made their entire profile private to the public, others made their entire profile viewable to the public, and others selected filters to expose certain information to the public somewhere between those two extremes. Now, standard information about each and every Facebook user is available to the public.
Employers using Facebook to screen applicants can make productive use of this newly-available information, but can also easily run afoul of federal, state, and local anti-discrimination laws in the process.
Lawful use of newly-available information
The changes to Facebook’s privacy settings allow employers to access more information about applicants with Facebook profiles than is typically available through standard pre-employment screening tools (application form, résumé, references, interview, writing sample, etc.). In making hiring decisions, employers may lawfully use information about an applicant’s characteristics or activities that are not protected by federal, state, or local law (as discussed in more detail below). In the context of Facebook’s newly-standard public information, employers viewing an applicant’s profile picture(s), networks, and Pages could obtain information about the applicant’s unprotected characteristics or activities such as illegal drug use, overconsumption of alcohol, tendency to support racist or other discriminatory groups, and/or general poor judgment in maintenance of their public Facebook persona.
By viewing the list of Pages an applicant supports on Facebook, employers may also be able to hypothesize as to another factor in the applicant’s candidacy: whether the applicant would be a good “fit” with the organization’s culture or values. For example, the hiring manager of a pesticide manufacturer might be interested to know that an applicant supports various entities that promote organic farming practices, or the hiring manager of a non-violent peace organization might be interested to know that an applicant is a fan of UFC (Ultimate Fighting Championship). Of course, employers considering an applicant’s potential fit with the culture of the organization should not take into account an applicant’s inclusion in any protected class when determining suitability.
Unlawful use of newly-available information
While learning additional information about applicants via Facebook can be a positive screening tool for employers, learning too much information could leave employers vulnerable to lawsuits for discriminatory hiring practices. Employers can face liability under federal, state, and local law (e.g., Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, state and local anti-discrimination laws) for using any information learned about an applicant’s protected class status (e.g., race, age, gender, national origin, military status, disability, religion, marital status, and in some states and locales, political affiliation, familial status, sexual orientation, and gender identity) in a hiring decision.
Viewing an applicant’s newly-available public information on Facebook can effortlessly result in an employer learning about an applicant’s protected class status; indeed, gender is now prominently displayed as public. In addition, an applicant’s profile picture and list of Pages could easily reveal or imply inclusion in almost every other protected class. For example, a hiring manager might see that an applicant supports a cancer foundation Page and assume that the applicant is disabled, or see that an applicant supports a gay rights group Page and assume that the applicant is gay. While the law only prohibits employment decisions based on use of such protected class status information, employers may find it difficult to prove in litigation that the information was viewed, but not actually used in the hiring decision. If an employer is sued for discriminatory hiring practices, the employer’s search of an applicant’s Facebook page may be revealed in later discovery, and it may be hard for the employer to then establish that it was not aware of or did not consider the applicant’s protected class.
Employers should consider whether the benefits of using Facebook to screen applicants outweigh the risks. If an employer wants to supplement traditional hiring practices with a Facebook search, the following is a suggested approach for using Facebook in hiring decisions:
- Screen applicants in a uniform manner. Create a list of the lawful information about applicants desired from the Facebook search. After these search criteria are compiled, screen all applicants using the lawful criteria. If employers do not have the time, resources, or inclination to screen all applicants in this way, they must be consistent with any subsets of applicants screened (i.e., choose to screen applicants for certain positions, levels, or grades of employment, rather than choosing to screen applicants based on subjective criteria).
- Have a neutral party (e.g., an employee in a non-decision-making role) conduct the Facebook search, filtering out any protected class information about the applicant and reporting only on information that may lawfully be considered in making the hiring decision.
- Consider searching Facebook only after the initial in-person interview with the applicant has taken place (i.e., after the employer has at least seen the applicant’s visible protected characteristics, thus eliminating the possibility that the hiring decision was based on those same characteristics found in the Facebook search).
- As always, employers must be able to point to a legitimate, non-discriminatory reason for the hiring decision, with documentation to support the decision. Employers who are considering making an employment decision based on information found in Facebook should always consult with employment counsel prior to doing so.
Employers must be cautious when using Facebook to screen applicants for employment, especially in light of Facebook’s new privacy settings that make certain standard information about each user, including protected class status, public. Employers must craft appropriate policies and procedures regarding screening applicants via Facebook (and other social media), and apply such policies in a consistent and non-discriminatory way.
- Facebook’s privacy settings are summarized at http://www.facebook.com/privacy/explanation.php?ref=pf, and fully detailed at http://www.facebook.com/policy.php. [Back to reference]
- “Pages” are organizations, businesses, personalities, and/or groups that users become “fans” of on Facebook. There are over 1.6 million active Pages on Facebook. [Back to reference]