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7 Overall Practical Legal Guidelines for Social Media Data Use in Selection
Legal Concerns When Considering Social Media Data in Selection
may not have significant experience with this selection method and could see it as
potentially suspect. The tool of social media data itself may be seen by some (i.e.,
judges or applicants) as unfair in the selection context. As such, organizations need
to clearly define what criteria they have in examining social media, and in the best
case scenario, have validation study data on its effectiveness in predicting workplace outcomes. To date, validation data on the effectiveness of social media use for
selection in the academic realm has been mixed (Kleumper et al., 2012; Stoughton,
Thompson, & Meade, 2013; Van Iddekinge, Lanivich, Roth, & Junco, 2013). We
recommend that organizations perform validation studies for their own use of social
media data in screening processes and the employee outcomes the social media data
With potential concerns that examining applicant’s social media data will reveal
protected class information that could lead to charges of discrimination against
organizations, organizations may consider measures to limit such risks. One such
way to do this would be to decouple who collects social media screening information from who makes employment decisions. In this case, one person would be in
charge of collecting social media data and then handing over only relevant information to the person making the selection decision, removing all protected class
information found in social media content.
LinkedIn allows user profiles to be downloaded in pdf form in a stripped-down
version that does not include pictures or post history. Having one HR worker download the profiles to pdf and provide them to the person making employment decisions would remove potential protected class information that could be discovered
through the profile picture and an examination of individual LinkedIn posts. This
may not help for age-related discrimination claims, however, as information is provided about college years and years in the workplace. While no actual birth date is
provided, an approximate one could be estimated using employment and education
dates. This ability to estimate the age of candidate was part of the Shoun v. Best
Formed Plastics (2016) case mentioned earlier in this chapter. LinkedIn profile pdf
download would not have alleviated the issue alleged in that case. Thus, downloading pdfs of LinkedIn profiles would alleviate some, not all concerns. Also important
is that other sites that might be looked at, such as Facebook or Twitter, lack this
feature and thus would need more manual (or application based) scrubbing of protected class information. Organizations might consider creating in-depth and clear
procedures of how social media data from sites examined would have protected
class information removed before the relevant social media data is passed onto
Companies may also consider having a third party vendor do the social media
data collection process. One example of a company doing this is Inquirehire (http://
inquirehire.com/services/social-media-screening). As noted by Morgan and Davis
(2013), however, third party vendors doing such screening might be considered
“consumer reporting agencies” under the Fair Credit Reporting Act and be subject
to restrictions based on that law and other consumer protection laws. Regardless of
choices made here, procedures used should be well-specified and followed consistently to avoid lawsuits and negative legal judgments.
G.B. Schmidt and K.W. O’Connor
There are still a number of important issues related to the legality of social media
data use in selection processes that will need to be examined in the future. One particularly important issue is that laws and court rulings related to social media use
can change over time. Higher court rulings, such as those of the US Supreme Court,
could have huge impact on the legality of elements of social media data use in selection. Federal laws would also have major impact and state laws have the potential to
contradict each other as states balance businesses interests and individual privacy
interests differently from state to state. Human Resource professionals need to keep
abreast of new laws and rulings as they happen. Organizations may want to have
staff or retain legal counsel to keep up to date on how new rulings may potentially
impact the legality of current social media selection processes.
The international legal environment for social media data in selection is an area
ripe for future examination. This chapter focused on the US legal context and gave
three examples of other national laws that may impact social media data use in
selection, but a systematic review across nations would be beneficial. Such legal
analysis could help organizations to determine how to structure social media data
using selection systems that could pass legal standards across all countries an organization has existing employees.
In-depth examinations of laws relevant to social media selection methods at the
country level would be extremely helpful as well. One example is the recent book of
Scaife (2014) on Internet-related law in the United Kingdom, which doesn’t examine social media data use in selection directly, but does offer a comprehensive review
of the existing UK laws relevant to social media. Examinations of law relevant to
selection could be done at the country or region level. This would be especially crucial if organizations followed a strategy of having unique social media selection
processes in each country, with such processes tailored to each country’s unique set
of laws. Such a system could lead to the highest levels of successful compliance with
individual country laws, with the potential downside being a lack of consistency in
selection procedures across countries. Such tradeoffs might be needed in the current
legal environment where there is significant legal variance between countries.
This chapter begins the examination of existing case law in the United States related
to social media data use in the applicant selection process. To date, only a handful
of cases have directly dealt with this area, but there is a significant body of law and
rulings that can have significant impact on social media data use in selection. This
chapter also discussed examples of laws in countries outside the United States that
could have significant impact on how social media data use in selection proceeds
both practically and legally within those country contexts. Social media data use for
Legal Concerns When Considering Social Media Data in Selection
selection is prevalent in organizational practice (Jobvite, 2013) and we would expect
such major use will lead to more legal cases in the future. This chapter begins to
build understanding of existing law so that organizations can be prepared for the
current legal environment and have some forewarning of other areas that might
ultimately be relevant.
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Online Exclusion: Biases That May Arise
When Using Social Media in Talent
Enrica N. Ruggs, Sarah Singletary Walker, Anita Blanchard,
and Shahar Gur
Abstract Some organizations have begun to use social media during the talent
acquisition process as a way to attract, recruit, and screen job applicants. Although
this method may provide ease and allow decision-makers to gain additional information about candidates, it may also lead to negative biases, particularly against
minority applicants. In this chapter we discuss why minorities may be at an increased
risk for exclusion when social media is used in attraction and recruitment as well as
why they may experience greater amounts of negative bias when social media are
used in screening in selection processes. We offer recommendations regarding
avoiding potential biases for organizations using or considering the use of social
media in talent acquisition. Additionally, we discuss avenues for future research
related to the manifestation of bias when using social media tools to attract, recruit,
and select employees.
Keywords Talent acquisition • Bias • Exclusion • Discrimination • Social media
E.N. Ruggs, Ph.D. (*) • A. Blanchard, Ph.D.
Department of Psychology, University of North Carolina at Charlotte,
9201 University City Blvd., Charlotte, NC 28223, USA
e-mail: firstname.lastname@example.org; email@example.com
S.S. Walker, Ph.D.
Department of Management and Marketing, University of Houston Downtown,
One Main Street, Houston, TX 77002, USA
Organizational Science, University of North Carolina at Charlotte,
9201 University City Blvd., Charlotte, NC 28223, USA
© Springer International Publishing Switzerland 2016
R.N. Landers, G.B. Schmidt (eds.), Social Media in Employee
Selection and Recruitment, DOI 10.1007/978-3-319-29989-1_14
E.N. Ruggs et al.
As social networking sites (SNS) such as LinkedIn, Twitter, Facebook continue to
become more central to our society, many individuals and organizations have begun
to use it as a tool in various aspects of the employment cycle. Over the course of the
last 5–10 years, there has been a steady increase in the number of organizations that
use SNS, a type of social media, in some capacity for the purposes of talent acquisition. Talent acquisition includes attracting, recruiting, screening, and selecting
individuals for positions within an organization.
A series of surveys conducted by the Society for Human Resource Management
(SHRM) show that the percent of organizations reporting the use of SNS to recruit
potential job applicants increased over 40 % between 2008 and 2013 (SHRM,
2013). Specifically, a review of SHRM studies during this period showed a steady
linear trend across time such that only 34 % of organizations surveyed in 2008
reported using SNS in recruitment. This rate increased to 56 % in 2011 and 77 % in
2013 (SHRM, 2013). A more recent SHRM study found that 65 % of organizations
survey in 2015 reported using SNS during recruitment over the past year (SHRM,
2015). In addition, there has been an increase in the percent of organizations reporting the use of SNS to screen job applicants, with 20 % reporting using some SNS
during the screening phase in 2013 compared to just 13 % in 2008 (SHRM, 2013).
Although the percentage of organizations in the SHRM survey that reported using
social media for screening is relatively lower than those using it for recruitment,
there is still evidence of the use of such media during the phase that directly precedes decision-making (i.e., selection). Furthermore, the percentage of organizations that uses social media for screening may be higher depending on the industry,
as one study found that as many as 50 % of recruiters in the hospitality industry
reported using SNS to screen job applicants (Chang & Madera, 2012).
For organizations, social media may help to streamline the talent acquisition
process as a human resource (HR) personnel can use the organization’s social media
to attract and recruit individuals. They also can examine an applicant’s SNS profile
to gather information about potential applicants, which can be used to make preliminary assessments about individuals based on the available information. For individuals, SNS can aid in networking, marketing of skills, acquiring information
about an organization’s culture and climate, and as a resource for seeking new positions. Job seekers can examine the organization’s reputation and culture through
their SNS posts (Ployhart, 2012), which allows recruits the ability to assess how
well they would match the organization’s culture. Social media has streamlined the
employment search process for job seekers (Jobvite, 2014), as they can quickly gain
information about and market themselves to several organizations in one place.
Because organizations advertise on SNS that potential employees are already using,
recruits do not have to go to online job boards (e.g., Career Builder, Monster.com)
to look for jobs (although active job seekers may still prefer this method over using
SNS; Acikgoz & Bergman, 2015). In this way, organizations can more easily reach
passive potential applicants who are engaged on SNS in which the organization
Online Exclusion: Biases That May Arise When Using Social Media…
Despite the benefits, the use of social media in the talent acquisition process may
have paradoxical effects on some individuals, particularly minorities or individuals
from traditionally marginalized groups (e.g., racial minorities, women, older workers, low-income; Brown & Vaughn, 2011; Ruggs, Speights, & Walker, 2013). In this
chapter, we discuss why minority job applicants may experience being at a greater
disadvantage than non-minorities when using social media in the talent acquisition.
We begin by discussing how potential differences in SNS presence may occur and
how this in turn influences talent acquisition, then move to discuss how negative
bias also plays a role in disadvantaging minority applicants.
We draw on Stigma Theory (Goffman, 1963), Attraction–Selection–Attrition
(Schneider, 1987), and Social Information Processing Theory (Walther, 1995) to
explain why minority job applicants may experience heightened negative bias in
talent acquisition processes that use SNS. We define negative bias as factors that can
have a negative influence on job applicants regardless of the intent behind those factors. Thus, negative bias includes forms of exclusion, which may be unintentional,
expressions of prejudicial attitudes, and displays of discrimination, or behaviors
that are engaged in by members within an organization that differentially disadvantage minority job applicants and lead to negative outcomes. Discrimination can
manifest in overt explicit behaviors or more subtle behaviors that may or may not be
intentional (for a review see Hebl, Foster, Mannix, & Dovidio, 2002). In this chapter
we use the term negative bias to refer to any of these factors that may lead to differential treatment or outcomes between minority and non-minority job applicants. We
propose a conceptual model (see Fig. 14.1) that explains how factors related to
potential applicants and factors related to the organization may negatively impact
minorities when social media is used in talent acquisition.
Our chapter makes several important contributions to research and practice.
First, we illustrate how differences in actual SNS participation and perceptions of
one’s participation can influence job applicants in the early stages of talent
acquisition and potentially exclude minority applicants from even having the opportunity to apply for positions. Second, although the patterns of negative bias toward
Fig. 14.1 The effect of job applicant group membership on talent acquisition processes that use
E.N. Ruggs et al.
individuals from minority groups has been well-documented in offline employment
situations, our chapter highlights mechanisms for why such biases may be heightened when using social media in the talent acquisition process. We specifically
explore factors that may contribute to a disproportional amount of negative bias
against individuals based on their group membership within traditionally marginalized groups. Third, we discuss individual and organizational consequences that may
be associated with using social media in talent acquisition. That is, we explore how
unintended bias against minority applicants has implications beyond those directly
related to the applicant. Fourth, we have developed a model that we believe can
serve as a basis for empirical research examining the impacts of social media in talent acquisition for minority applicants, and the information gleaned can be used as
a guide for developing and implementing organizational policies in this area.
We begin this chapter by providing an overview of why minorities may be negatively affected when social media is introduced into talent acquisition, and then we
move forward in discussing how applicants and organizations are affected at various
stages of the talent acquisition process. Finally, we offer recommendations for
future research and practice concerning bias implications of the use of social media
in talent acquisition.
Effects of Social Media in Talent Acquisition
on Minority Individuals
Individuals belonging to traditionally marginalized groups may be at a disadvantage
in the talent acquisition process when social media is used for several reasons. In
particular, these media may introduce additional negative biases into the talent
acquisition process. These biases can arise due to the ways in which SNS are used
by job seekers and organizations and may be influenced by a variety of factors such
as job seeker demographics and the composition of an organization.
One factor that can negatively bias minority job applicants is differences in SNS
presence based on group membership. We define SNS presence as not only having
an account but also establishing an image that attracts and retains positive (or negative) attention. The percentage of individuals belonging to traditionally marginalized versus non-marginalized groups use some SNS at similar rates. Facebook for
instance, has an equitable distribution across ethnicities in popularity (Pew Research
Center, 2015). This SNS is more casual than sites such as LinkedIn, focusing on
non-work issues (e.g., politics, entertainment, pictures, social topics). LinkedIn,
however, which is primarily focused on employment issues, is primarily populated
by older, more educated, more established employees (Duggan, Ellison, Lampe,
Lenhart, & Madden, 2014). Organizations that have reported using SNS in recruiting use LinkedIn more often (94 %) than Facebook (54 %; SHRM, 2013, 2015).
Furthermore, potential applicants report using LinkedIn more so than Facebook and
Twitter when actively seeking jobs (Acikgoz & Bergman, 2015). Although SNS are
generally not the sole recruitment tool for many organizations, the differences in
Online Exclusion: Biases That May Arise When Using Social Media…
applicant presence and organization recruitment on SNS may put older, educated,
male applicants at an advantage during the early stages of talent acquisition, as there
are more of these individuals receiving information about job openings at a quicker
rate and being directly targeted for specific positions.
At their core, social media and SNS are media that allow individuals to connect
with other individuals within their network. Networking partners can provide access
to employment opportunities by providing recommendations and referrals of individuals to their own and other organizations to which they are connected. Such
processes are important in talent acquisition as some research suggests that referrals
lead to a higher probability of receiving a job offer than other recruitment methods
such as job fairs and college placement officers (Breaugh, Greising, Taggart, &
Chen, 2003). To the extent that individuals are differentially provided access to or
are not engaged with networks that have access to resources such as job and advancement opportunities (whether this is through intentional targeting of certain groups
through SNS or through unintentional passing of information within homogeneous
networks on SNS), then some individuals may be at a greater disadvantage from the
beginning of the talent acquisition process.
We posit that individuals’ online social networks will mimic their offline social
networks in that networks are often fairly homogenous in terms of demographic
characteristics (Mollica, Gray, & Trevino, 2003). When looking specifically at
online social networks on Facebook, research supports this notion as studies have
shown high levels of racial homogeneity and race-based in-group favoritism in
social networks (Hebl, Williams, Sundermann, Kell, & Davies, 2012; Wimmer &
Lewis, 2010). This may particularly put job applicants from marginalized groups at
a disadvantage in the talent acquisition process as White males traditionally belong
to higher status networks than women, Hispanics, and Blacks (McDonald, 2011).
Individuals who belong to higher status groups will have more access to resources
including information about positions and connections to individuals who can help
place someone in a position. Having a network that includes key connectors can be
instrumental in helping applicants not only locate openings during recruitment processes, but also help them be recommended for positions during selection
Overall, both the actual use of certain SNS and the type of networks established
on these sites will likely negatively affect marginalized individuals’ SNS presence.
Particularly on LinkedIn where most recruiters start, minority applicants are likely
to have less of a presence. Further, because we anticipate offline and online social
networks look similar, we expect that the connection between recruiters and minority applicants will be more distant than the connection between recruiters and nonminority applicants.
Proposition 1: Minority job applicants will have less of a SNS presence than nonminority job applicants.
As seen in Fig. 14.1, another factor that may effect minority applicants when
using SNS in talent acquisition is the presence of negative bias, which may manifest
in the form of discrimination. This is based on Stigma Theory (Goffman, 1963),
E.N. Ruggs et al.
which states that individuals who possess a stigma characteristic, which is any
characteristic that is devalued in society, may experience prejudice and discrimination based on this stigma. Stigma Theory has been used to explain why individuals
belonging to groups such as minority racial and ethnic groups and women are marginalized and experience discrimination and other forms of bias across a variety of
settings. Indeed, as individuals from marginalized groups already experience higher
levels of negative bias than those in non-marginalized groups in traditional talent
acquisition processes (for examples see Agerström & Rooth, 2011; Derous, Ryan,
& Nguyen, 2012; Ruggs, Hebl, Walker, & Fa-Kaji, 2014), these negative biases are
likely to be exacerbated when using SNS in talent acquisition. Thus, it is not the
case that the use of social media leads to a new problem for minority applicants;
rather, the use of social media may further promote the biases already seen in more
traditional talent acquisition processes as the structures of and interactions within
online networks are likely similar to those of offline networks (Ruggs et al., 2013).
Therefore, the pattern of bias seen in offline processes will be intensified when
using online SNS because people tend to use even fewer cues to make decisions
about individuals online versus offline.
This is in line with the theory of Social Information Processing ([SIP]; Walther,
1995; Walther, Van Der Heide, Ramirez, Burgoon, & Peña, 2015), which states that
people receive fewer cues about others online than they do in person, and they overinterpret the few cues that are received. In Walther’s (1995) classic example, when
people identified with their communication group, they rated their online communicators as smarter, kinder, and better looking than the people they interacted with
over the phone or face-to-face. Walther called this “hyper-personalizing” of online
relationships and is the effect of sharing group identifications (or not) and the overinterpretation of a few personal cues. This overinterpretation can lead to biased
perceptions as people often use stereotypes about characteristics with which they
are familiar when there is a lack of information available (Fiske & Neuberg, 1990).
When using factors presented on SNS such as pictures and personal preferences,
decision-makers may be inviting bias into the decision-making process that may be
more harmful to members of marginalized groups versus those of non-marginalized
groups due to the bias that already occurs against individuals in these groups. Also,
stereotypes related to culture and cultural differences may be increased when using
SNS in talent acquisition as one study found that Black and Hispanics are more
likely than Whites to express cultural tastes such as music and movie preferences on
Facebook (Grasmuck et al., 2009). Indeed, Grasmuck and colleagues found that
minorities make their racial identities salient on Facebook, which can be taken out
of context and lead to stereotyped judgments when viewed in isolation by a recruiter
or hiring manager. Some evidence of such biases were seen in a recent study that
showed that recruiters evaluating SNS provided higher assessments of suitability
(e.g., extent to which they thought the person was an attractive applicant) for White
applicants than Black or Hispanic applicants (Van Iddekinge, Lanivich, Roth, &
The use of cultural, racial, and other demographic information by organizational
decision-makers may be conscious and due to prejudicial attitudes about others;