Sep 10, 2009

FL09_MastheadSo, there you are, innocently researching a potentially awesome new candidate when you stumble upon her personal blog that goes beyond mere TMI and causes your cheeks to turn crimson. Or, perhaps your eyes are still bug-eyed after reading about some “interesting” history in a candidate’s criminal background check. Or you receive a video resume and your knee-jerk reaction is that the person is simply u-g-l-y with no alibi.

Whatever the case, if you have ever felt as though you might be running into legal issues, the U.S. EEOC’s Assistant Legal Counsel Carol Miaskoff says to listen up to the following basic rules:

Facebook and Similar Social Networking Sites

When you have interactions with people on these sites, keep in mind non-discrimination principles, says Miaskoff.

“If race, gender, or age is obvious, you need to not let that control your reaction to the person; that’s the same skill you would bring to an interview. It sounds so basic, and it is basic,” she says.

Encourage team-wide use of simple procedures when scouting sources like Facebook, MySpace, or LinkedIn. For example, provide basic training to your team; institute new procedures; or follow a set of questions that prompt your team to move beyond that “gut-level reaction.”


Lots of people have them, and some people will blog about things like a personal illness. What to do when you stumble over this information?

Although ADA rules mean recruiters must assess qualifications first, without asking questions about disabilities, there is a caveat.

“If you inadvertently stumbled upon the information, you have NOT violated the ADA [Americans with Disabilities Act], which prohibits pre-offer questions about disability,” she says.

Video Resumes

Although there are no court rulings on video resumes yet, Miaskoff says recruiters must be prompted to look at the same qualifications, despite a person’s appearance.

“In and of itself, there is nothing wrong with them. So have feedback from various, diverse sources on your team who all view the video resume,” she says. “Put checks in there so you don’t have one person discriminating.”

Video resumes are also employment records and need to be retained for two years. This is where reluctance comes in to use them, she says. Because people are concerned about keeping a picture of someone who has been screened out of your company’s hiring process, there is sometimes an added fear of litigation.

Still, “that’s not a good-enough reason; if you have good documentation in place as to what your process was, you will be able to show you gave everyone fair and equal consideration.”

Public Information: Criminal Background Checks

The EEOC has some rules governing background checks as well.

“This is an area where the EEOC policy says it is ok to do a criminal background check; there is no prohibition categorically,” she says. But the check has to relate to the job in question and whether the conviction fairly screens out a candidate and his or her ability to do the job.

“Obviously, there are crimes that disqualify people for jobs,” she says, “so look at the relationship to the job.”

Public Information: Credit Checks

There is not half as much legal authority out there about screening people out on a bad credit score, she cautions.

“Now, you must again ask whether not being ‘credit-worthy’ is consistent with the job in question. It might be with jobs related to access to money. You really have to think this through.”

Online Testing

The New Haven firefighter case is the most prominent recent testing case, she says.

Testing is a tool used to decide who you will consider for a job. “Look at the impact and job-relatedness carefully,” she says. “This applies to all tests, including personality assessments.”


ADA rules require that people with disabilities have equal access to all employment opportunities. Beyond reasonable accommodations, online recruiting means having online software and tools available to people with poor vision, are hard of hearing, or have trouble using their hands.

Think of “simple accessibility” when you use online tools, she says, including “employment web pages, online recruitment, and online applications.”

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