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3 Areas of Potential United States Legal Concerns When Accessing Applicant Social Media Data

3 Areas of Potential United States Legal Concerns When Accessing Applicant Social Media Data

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13



Legal Concerns When Considering Social Media Data in Selection



13.4.1



269



Title VII of the Civil Rights Act of 1964



Title VII of the Civil Rights Act of 1964 and its subsequent amendments prohibit

discrimination in employment against applicants, employees, and union members

on the basis of protected class characteristics. These protected classes include race,

color, national origin, religion, and sex. Every aspect of the hiring process, including promotion, employee benefits, discipline, and discharge, is covered by Title VII

(Civil Rights Act, 1964).

Title VII applies to organizations with 15 or more employees. However, the

Supreme Court has ruled that smaller employers might be subject to lawsuits filed

under Title VII under some circumstances (e.g., Arbaugh v. Y & H Corp., d/b/a The

Moonlight Café). The Act also prohibits discrimination in most federal government

places of employment, labor unions with 15 or more members, as well as discrimination against undocumented workers (Civil Rights Act, 1964).



13.4.1.1



Who Enforces Title VII’s Provisions?



The Equal Employment Opportunity Commission (EEOC) is the federal agency

that monitors compliance with Title VII. Employees that allege discrimination must

file the claim with the EEOC before a lawsuit can be brought against the employer.

The EEOC may investigate the dispute, initiate a lawsuit, consent to an out-of-court

settlement, or may issue a right to sue letter to the employee. The right to sue letter

allows an employee to bring his or her own lawsuit against the employer. The EEOC

also oversees complaints involving violations of the Americans with Disabilities

Act of 1990 (ADA) and The Age Discrimination in Employment Act of 1967

(ADEA) (Cross & Miller, 2014).



13.4.1.2



Title VII Issues in Selection



The selection process has historically been a primary source of legal violations

involving discrimination (Williams et al., 2013). Social media discrimination in

selection is a new application of the long-standing legal principles found under Title

VII. In the case of Gaskell v. Univ. of Kentucky (2010), Gaskell was a leading candidate for a position as the founding director of a new observatory at the University

of Kentucky. The university’s search committee, however, found Gaskell’s personal

website in which he expressed his religious views in an article called “Modern

Astronomy, the Bible, and Creation.” The committee, which included physics professor, Sally Shafer, voiced concern, in writing, over the plaintiff’s reconciling of

the Bible with the theory of evolution.

“Clearly this man is complex and likely fascinating to talk with,” Shafer wrote,

“but potentially evangelical. If we hire him, we should expect similar content to be

posted on or directly linked from the department Web site” (Oppenheimer, 2010).



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As a result of this information, they chose another, less qualified candidate. Gaskell

sued, claiming a violation of his Title VII protections against religious discrimination. Prior to trial, the University of Kentucky settled the case with Gaskell for

$125,000 (National Center for Science Education, 2011).

Title VII prohibits discrimination on the basis of religion, and every other protected class characteristic, so interviewers generally avoid asking such types of

questions during interviews. This case shows that discrimination, however, can and

does result from online searches. It also shows that search committees need to be

trained in what constitutes discrimination and to avoid using online searches in such

a manner. Organizations could also advise against search committees looking online

at all. As the Gaskell case shows, there is an inherent risk of employer liability for

organizations when searching for candidate information online.



13.4.2



Americans with Disabilities Act



The Americans with Disabilities Act (“ADA”) of 1990 prohibits employment discrimination on the basis of an individual’s disability. It applies to all workplaces

with 15 or more employees. The ADA requires employers to reasonably accommodate disabled applicants and employees unless it would create an undue hardship to the employer. The ADA’s recent amendment broadens the class definitions

of disability. To prevail under the ADA, a plaintiff must show that he or she (1) has

a disability, (2) is otherwise qualified for the employment in question, and (3) was

excluded from the employment because of a disability (ADA, 1990). Plaintiffs

may seek the same remedies that are available under Title VII. These include compensatory and punitive damages, reinstatement to the employee’s position within

the organization, and back pay. Repeat violators may be fined up to $100,000

(ADA, 1990).

Disabilities may include health conditions and physical or mental impairments,

and the law protects the confidentiality of such conditions. Under section 102 of the

ADA, employers are required to treat information related to the disability as a confidential medical record (Wright, 2014). The ADA also prevents employers from

taking adverse employment action based upon assumptions about individuals who

associate with people who have disabilities. For example, an employer may not refuse to hire an applicant whose spouse has a disability based upon the assumption

that the applicant will miss work (ADA, 1990; Cross & Miller, 2014).

The ADA, however, does not require that employers accommodate the needs of

applicants or employees with disabilities who are otherwise not qualified for the

work. Rather, if the individual with the disability can perform the essential functions

of the job, with reasonable accommodation, the employer must make the accommodation. Only if making the accommodation would cause the employer undue hardship, meaning significant difficulty or expense on the part of the employer, will

courts allow the employer to prevail (Cross & Miller, 2014).



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In Shoun v. Best Formed Plastics (2016), George Shoun brought an action

under the ADA against his employer alleging that an individual acting on behalf of

his employer disclosed confidential information about his medical condition to

other people via a Facebook post. The plaintiff, while employed by Best Formed

Plastics, suffered a workplace injury to the shoulder. Shoun spent several months

away from work recovering. Jane Stewart processed Shoun’s workers compensation claim for the company. She posted the following statement on her Facebook

page, “Isn’t it amazing that Jimmy experienced a 5 way heart bypass just one

month ago and is back to work, especially when you consider George Shoun’s

shoulder injury kept him away from work for 11 months and now he is trying to

sue us.” The post stayed on Facebook for 76 days and, according to Shoun, was

viewable by the surrounding business community. The court refused to grant Best

Formed Plastic’s motion to dismiss the claim and instead held that Shoun set forth

sufficient facts to allege a violation of the confidentiality provisions of the

ADA. The jury awarded Shoun $412,680 in compensatory and punitive damages

(Shoun v. Best Formed Plastics, 2016).

The Shoun case stands for some important principles. First, this case shows that

there is potential employer liability for violating the confidentiality provisions of

the ADA through social media posts. Second, this case is a good illustration of some

bad practices (i.e., mocking an employee online) which employee training could

beneficially address. Comparing the health issues of employees, as well as public

shaming of an employee, can also lead to serious problems with future employee

trust and morale within the organization (Goldman, 2014). It is best to train employees to refrain from publicly commenting about one another on social media, especially where the law already mandates strict confidentiality.

The ADA is another example of existing laws used in the new realm of social

media cases. With regard to selection of candidates, the ADA’s protection begins at

the moment the applicant applies for the job in question. Thus, employers who are

looking at social media profiles and pages to gain information about candidates

must be aware that excluding candidates based upon information gleaned from

social media about a physical or mental impairment or condition would be a violation of federal law.



13.4.3



The Age Discrimination in Employment Act



The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals who are 40 years old and older. The Act also prohibits mandatory retirement for nonmanagerial workers. The ADEA protects federal

and private-sector workers from age discrimination and claims of retaliation for

complaining about age discrimination. For the Act to apply, an employer must have

at least 20 employees and the employer's business activities must affect interstate

commerce (ADEA, 1967).



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To establish the case, the plaintiff must show that he or she was (1) a member of

the protected age group, (2) qualified for the position from which he or she was

discharged, and (3) was discharged because of age discrimination. If the employer

can offer a legitimate reason for terminating the employee, which is not pretextual

in nature, then the employer has a valid legal defense (ADEA, 1967).

Like the other federal protections discussed in this chapter, the ADEA also protects job applicants. In Nieman v. Grange Mutual Casualty Co. (2012) (“Grange”),

the plaintiff, Jason Nieman, applied for a job with Grange affiliate Integrity Mutual

Insurance Company (“Integrity”). Nieman claimed that he was passed over for the

job based upon his age, in violation of the ADEA. He alleged that Integrity was

aware of his age, which was over age 40, because the year he graduated from college (1989) was on Linkedin. The court concluded that there were sufficient facts

established by the plaintiff to deny Integrity’s motion to dismiss the case. This case

ended in 2014, when a subsequent court held that Nieman’s ADEA claim failed

because the candidate that Integrity did hire was not significantly younger than

Nieman (2013 U.S. Dist. LEXIS 47685).

Though the employer ultimately prevailed in Neiman v. Granger, this case illustrates how precarious ADEA claims can be for employers. Specifically, LinkedIn

and other similar sites are tailored to professionals and job applicants, and many

users list information which can reveal their actual ages. Employers must be aware

that the ADEA will protect candidates and employees of age 40 and over who are

passed over for hiring and promotion, or those who are ultimately terminated due to

their ages. Having access to this information creates an extra layer of concern for

employers, so effort should be made to make sure that personnel decisions are not

based on, or appear to be based on, age for workers who are 40 years old and older.



13.4.4



Pregnancy Discrimination Act



The Pregnancy Discrimination Act of 1978 (PDA) amends Title VII to prohibit sex

discrimination on the basis of pregnancy. It is an area of the law that is constantly

developing, as pregnancy discrimination claims are on the rise and recent cases are

being considered by high courts, such as the US Supreme Court. In 2014, sex and

pregnancy discrimination lawsuits accounted for 55 % of all Title VII claims filed

(McGowan, 2015).

The PDA prohibits discrimination on the basis of pregnancy, childbirth, or

related medical conditions and applies to employers with 15 or more employees,

including state and local governments. The Act states that women who are pregnant

or affected by pregnancy-related conditions must be treated in the same manner as

other applicants or employees with similar abilities or limitations.

In 2012, the EEOC issued a warning against pregnancy discrimination to employers who screen job applicants’ social media profiles. This warning reminded

employers that if an employer learns that a job applicant is in the early stages of

pregnancy from that applicant’s social media, then does not hire that applicant, the



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applicant could plausibly accuse the employer of discriminating based on her pregnancy (Phillips & Associates, 2012). By the same token, the EEOC reminded

employees to be aware what information they are voluntarily posting on social

media. Announcing pregnancies, posting ultrasound pictures, or posting pictures

from pregnancy photo shoots are all common occurrences and are easily discoverable by employers.

So in the social media data screening process, HR professionals are likely to

encounter information that may inform them that a candidate is pregnant or likely

pregnant. This can be through posts made by the applicant, or by the applicant’s

social media connections. Organizations need to make sure that those who do the

screening do not use pregnancy status as a negative factor or as a reason to remove

a candidate from a search. If a candidate is de-selected due to pregnancy, violating

the PDA may result in significant penalties for the organization.



13.4.5



Sexual Orientation Legal Protections



There is currently a limited amount of protection at the federal level for private

employers for discrimination based upon sexual orientation, though governmental

workers are protected from sexual orientation or gender identity discrimination

under the Civil Service Reform Act of 1978. A July 15, 2015 ruling by the EEOC

“recognize[d] that elements of the following issues are emerging and developing…

coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s

sex discrimination provisions, as they may apply.” The EEOC went on to reason

that sexual orientation discrimination is linked to sex discrimination, which is protected under Title VII (National Law Review, 2015). At this time, it is unclear

whether the courts will ultimately agree with the EEOC; however, a significant

number of states already do provide sexual orientation protection for workers at the

state and local level.

When using social media sites for information about candidates and employees,

it is important for employers to know the laws of the states that they do business in.

For multi-state corporations, it is entirely possible that workers may not be considered to have been discriminated against in one state, but the same set of facts will be

considered discrimination in another. An example of a state where sexual orientation is a protected class is New York. New York bars discrimination based on sexual

orientation in employment, housing, and public accommodations (The Sexual

Orientation Non-Discrimination Act, 2003).

Some states go even further and also protect gender identity as a protected class.

By including gender identity in their state statute, transgender individuals may not

be discriminated against in employment, beginning at the time the potential

employee applies for a position. This protection continues throughout employment

(ACLU, 2015).

In Macy v. Holder (2010), the EEOC held that discrimination against a transgender employee is akin to sex discrimination. In this case, Mia Macy, a transgender



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woman, was employed as a police detective by the city of Phoenix. Her supervisor

informed her that the federal Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) was accepting applications for a ballistics expert in a crime laboratory near

San Francisco, and that she had the right qualifications for the position. While in

Phoenix, Macy was still presenting as a man, but Macy had plans to soon transition

to a female identity.

In 2010, she relocated to San Francisco and applied for this job. Macy spoke

with the Director of the ATF about the position, and she was given details about the

position’s salary and benefits. According to Macy, the Director told her that she

would get the position so long as she passed her background check. Macy subsequently told the San Francisco office via e-mail that she was in the process of transitioning from male to female. Five days later, Macy received an e-mail from the

office stating that the position in the ATF lab no longer existed due to federal budget

reductions. However, Macy later learned that the position was actually not cut and

was filled by someone else. In 2011, Macy filed a discrimination claim and won,

establishing the legal precedent that discriminating against individuals who present

non-conforming expressions of gender also violates Title VII (Grossman, 2012;

Macy, 2010).

From the selection perspective, organizations need to make sure that the personal

views of employees related to sexual orientation and gender identity do not result in

social media data on sexual orientation or gender identity factors being used to disqualify candidates. This is legally crucial in states where existing legal protections

for discrimination based on sexual orientation and gender identity exist. So organizations need to be up to date on such laws in all states where they employ workers.



13.5



Privacy Rights



Facebook, Google, Yahoo, etc. have all been accused of violating user’s right to

privacy (Cross & Miller, 2014). This is due to a common misperception that there

is an inherent right to privacy for US citizens in all matters. In addition, many

social media users believe that setting one’s privacy settings on a social media site

ensures that they have the site’s assurances of privacy when they post. However,

this is not the case.

Instead, courts have held that the legal standard in privacy cases is whether or not

an individual has a “reasonable expectation” under the circumstances. In social

media cases involving privacy arguments, courts have consistently held that users

do not have a reasonable expectation of privacy because social media websites are

publicly available. Moreover, social media users are voluntarily giving up their privacy by posting their personal information online (Carlson, 2014).

For example, in Nucci v. Target (2015), Target employee Maria Nucci suffered a

slip and fall at work. After a lawsuit was filed against Target, Target requested

Nucci’s Facebook pictures. Target argued that the photographs were directly relevant to the lawsuit and would show Nucci’s physical state prior to and following the



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accident. Nucci argued that she had a reasonable expectation of privacy in her

Facebook photographs because she had her privacy settings set. Nucci even deleted

three dozen pictures from her account following Target’s request. The court ordered

Nucci to produce and give all of her Facebook pictures to Target from a 2-year period surrounding her fall, including those that she had deleted. The court went on to

emphatically hold that there can be no reasonable expectation of privacy in social

media accounts.

So while workers may express concerns about their employer viewing their

social media data and feel they should have privacy protections to what they post, to

date there is little existing legal protection or case law that has been applied to such

privacy concerns. In the next section, we will raise exceptions to this, which involves

state laws that address employers that request applicant and employee social media

username and password information.



13.5.1



Laws on Asking for Applicant Social Media Passwords



While general privacy protections on social media are nonexistent, a developing

employer practice of requesting applicants’ social media password as a condition of

employment or as part of the hiring process has led to legislation being proposed

and passed in many states banning the practice. As this practice gained ground, state

legislatures began drafting laws to protect applicants, and in 2015, alone 23 states

introduced legislation on this matter. These laws have mostly been argued as protection of privacy rights for applicants and current workers in organizations (National

Conference of State Legislatures, 2015).

Approximately, 20 states currently have laws prohibiting employers from requiring applicants and employees to disclose their passwords (Drouin, O’Connor,

Schmidt, & Miller, 2015; Pate, 2012). For example, Illinois’ password protection

law provides that “it shall be unlawful for any employer to ask any prospective

employee to provide any username, password, or other related account information

in order to gain access to a social networking website where that prospective

employee maintains an account or profile.” A handful of other states also extend this

protection to prohibit academic institutions from requesting that a student or applicant log onto a personal social media account (National Conference of State

Legislatures, 2015).

There are some elements that appear in the majority of these laws. The first element found almost universally is that it is illegal for employers to require applicants

or current employees to disclose to the organization social media user names and

passwords. Disclosing such information cannot be required. Another common element is that organizations cannot require applicants or current employees to add the

organization, a supervisor, or an administrator as a social media contact (National

Conference of State Legislatures, 2015). In such a case, this mandatory connection

could be a way for the organization to access the applicant’s social media content

that is available to connections. Another element commonly found in such legislation



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is making it illegal to require applicants or current employees to change social

media privacy settings. In this case, it could be removing all privacy settings, so the

organization could see all content posted or even requiring workers to only have

extremely strict privacy settings. A final common element is banning retaliation

against applicants or employees who refuse to share password or user name information with an employer (National Conference of State Legislatures, 2015).

Some state laws will have unique elements, as well. For one example, the law

passed in June 2015 in Oregon makes it illegal for the organization to require applicants and employees to create or maintain personal social media accounts or to

require that the employer has the right to advertise on persons’ personal social

media account (National Conference of State Legislatures, 2015). Organizations

located in multiple states will need to become familiar with the intricacies of laws

in all states they have employees in.

There certainly are additional limitations. For example, employees in states

where there is no existing legislative protection have no safeguard for social media

data or other information that is openly available on the Internet (Pate, 2012). The

existing password protection laws also typically do not protect an employee who is

logging onto social media using an employer-provided device or sometimes even an

employer-provided Internet service. Employer monitoring under these circumstances is mostly unregulated. Organizations need to know well what the laws cover

(and do not cover) to be legally compliant. Such password laws also, of course, do

not stop an employer from viewing social media content that can be found in google

searches and content that was posted publicly.

Worth noting here is that from an organizational perspective, having applicant

user names and passwords would most likely result in the organization acquiring the

most accurate and encompassing social media data to use in the selection process.

In such a case, the organization would have great confidence that they are looking

at the right person’s account(s) and be able to see all content that is relevant to

inform the selection process. This assumes, of course, that some applicants don’t

have multiple accounts at the same site and the one whose password is shared isn’t

the one that is sanitized with regard to its content and/or is set up for impression

management purposes. Such a possibility does exist, and in such cases, having

applicant passwords may not be practically useful since the social media data gained

is potentially inaccurate.

Having all applicants’ social media user names and passwords would also avoid

the difference in information found between applicants with different privacy settings. The employer could see all content from all applicants as opposed to just the

content posted publicly. One might think this greater amount of information could

help overall predictive quality of social media data. So here we see a law that puts

applicant privacy rights above potential business interests. The question of the

effectiveness of social media use in selection is dealt with in other places in this

book, but such password laws do restrict how organizations can engage in obtaining

social media data on candidates. Different governments may put the balance at different levels, as we will show in our next section on international differences in laws

related to selection in social media.



13



Legal Concerns When Considering Social Media Data in Selection



13.6



277



International Differences in Laws Related to Selection

Use in Social Media



While this chapter has focused so far on the US legal context with regard to social

media use in employee selection, many such decisions will be made in other country

and international legal contexts. For multinational organizations, the legal context

business is done in is not one country, but many different countries with different

and potentially conflicting legal standards. We will shortly examine three examples

of laws in non-US countries that can impact social media screening from both legality and practicality standpoints.

In 2010, the German Parliament discussed a part of a general law about workplace privacy with a particular provision that would restrict the use of social media

for selection screening. The bill would allow employers to search for publicly available data about a client and view applicant information on professional social networking sites like LinkedIn, but would specifically ban employers from using

personal social media sites like Facebook. So the German law would have significantly limited what employers in Germany could look at (Jolly, 2010). While this

bill did not pass the German Parliament, future bills that may pass could have huge

impact on how social media screening can be done in particular country contexts.

We will now look at three existing laws that could potentially impact social media

selection.



13.6.1



European Union “Right to Be Forgotten”



Recent court rulings in the European Union have potentially serious impact on the

type of information that organizations might find while using social media data for

selection. A court ruling in May 2014 from the European Union’s highest court held

that EU citizens have the “right to be forgotten” online for their past behaviors that

have been already resolved or are currently out of date (Strietfeld, 2014). The ruling

held that citizens of the European Union have the right (in particular circumstances)

to ask Internet search engines to remove links with personal information about them

when that information is “inaccurate, inadequate, irrelevant, or excessive” (European

Commission, 2014, p. 2). They note that the right to be forgotten is not absolute and

would need to be balanced with other personal rights and thus decisions need to be

made on a case-by-case basis for requests. Important to note here is that the information is not itself removed from the Internet, rather it no longer shows up in search

results from search engines like Google.

Citizens of the European Union file a petition to have such content removed from

search engine results from a search engine provider. Currently, the search engine

providers themselves are making such determinations on a case-by-case basis,

although the European Union privacy regulators can be involved in such decisions

as deemed warranted (European Commission, 2014). Google reports that so far



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there have been requests for more than 733,000 URLs to be removed, and Google

has agreed to the removal of approximately 238,000 URLs of the requested URLs

from search results (Lomas, 2015a). Data analysis by Reputation VIP, a reputation

management company that offers a service to help European citizens make such

requests, found that requests made through their service were rejected by Google

approximately 70 % of the time (Lomas, 2015b). So, currently it would seem the

majority of requests are being refused.

Reputation VIP recently released a report on what types of content links have

been removed from the 61,500 requests they have administered through their application. The most common categories of reasons for requests was “invasion of privacy” (58.7 %), which involves sites sharing things like personal addresses, religious

affiliations, or political party membership (Lomas, 2015b). From the selection perspective, some of this information would be irrelevant and other information could

lead to finding out individual characteristics that might run afoul of equal employment opportunities laws in the United States and elsewhere. The second most common category of reasons was “damage to reputation,” (11.2 %) which depending on

why it is damaging might be useful for organizations in screening out processes

(Lomas, 2015b). For example, an applicant being delinquent in payments for previous business dealings might be information an organization would want if it was

hiring someone to be responsible for a financial position.

The report also has categories of what types of sites the material was present on

when the request was accepted. The largest specific category was social media sites/

communities (20 %) with 6552 URL links removed from search engines (Lomas,

2015b). For organizations using search engines to find candidate information on

social media, these removals might be material that would have led to the candidate

being screened out.

One point of contention so far between Google and the European Union privacy

regulators has been whether web content search links should be deleted from only

European Union country-specific Google search engines sites or from the general

search engine site Google.com. The European Union regulators are currently arguing that removal needs to be for the general Google.com domain as well, otherwise

people in the European Union can circumvent the ruling by going to the general

Google.com domain for search (Lomas, 2015a). Google has refused to do so.

Removal from general Google.com search could have significant implications for

employers and individuals worldwide who are being able to access such information. So for now, on a practical level, organizations using search engines to find

social media material can use the general domains over country-specific domains

but the European Union’s stance is that this is a loophole that should be closed.

The “right to be forgotten” has clear implications for social media use in the

screening of candidates. If past indiscretions are removed from search results, they

likely will not appear in the screening processes done by organizations. For now,

loopholes exist through using other country-specific sites or international sites and

the majority of removal requests are being rejected by Google. This could certainly

change, however, and the intent of the European Union regulators seems so far to be

that these “loopholes” need to be closed. As currently applied, there has not been



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