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7 Overall Practical Legal Guidelines for Social Media Data Use in Selection

7 Overall Practical Legal Guidelines for Social Media Data Use in Selection

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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

Future Considerations

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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Chapter 14

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: eruggs@uncc.edu; ablanch@uncc.edu

S.S. Walker, Ph.D.

Department of Management and Marketing, University of Houston Downtown,

One Main Street, Houston, TX 77002, USA

e-mail: walkersa@uhd.edu

S. Gur

Organizational Science, University of North Carolina at Charlotte,

9201 University City Blvd., Charlotte, NC 28223, USA

e-mail: sgur@uncc.edu

© 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

social media


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, &

Junco, 2013).

The use of cultural, racial, and other demographic information by organizational

decision-makers may be conscious and due to prejudicial attitudes about others;

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7 Overall Practical Legal Guidelines for Social Media Data Use in Selection

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