The Legalities of Screening Candidates’ Social Media

Would you rather hire the candidate whom you discovered on Facebook is having medical issues or the candidate who isn't? Your honest answer isn't your legal one.

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Mar 2, 2023

According to a 2020 survey by The Harris Poll, 70% of employers believe that every company should screen candidates’ social-media accounts as part of the hiring process. There are many reasons why you would want to check the online footprint of a potential employee: How are they as a communicator? Do they exhibit poor judgment by posting inappropriate updates or photos (drug use, racism, sexism, etc.)? Have they trashed the reputation of a former employer? Have they shared confidential or proprietary information of a former employer?

But unless you conduct this online search carefully and correctly, the details it discloses could subject your organization to liability through the inadvertent discovery of information about protected classes to which candidates belong.

Consider the following example, ripped from my own personal experience:

My 14-year-old son, Donovan, has Noonan Syndrome, a multi-system genetic disorder caused by one of several genetic mutations with an estimated prevalence of 1 in 1,000 to 2,500 births. Donovan’s mutation is of his PTPN11 gene, and in his case he has a bleeding (platelet function) disorder, a congenital heart defect (pulmonary valve stenosis), feeding and gastrointestinal issues (Celiac disease), ptosis of his right eye, small stature (for which he took daily injections of growth hormones), and low-set ears.

While his doctors diagnosed his Noonan Syndrome when he was a mere five months old, it took years for its many layers to reveal themselves, including his bleeding disorder and Celiac disease, of which we jointly learned during a 19-day hospital stay when he was only two years old.

That hospital stay overlapped with Valentine’s Day 2011. I sat in Donovan’s hospital room trying to think of something nice to do for my wife. I quickly discarded the idea of a souvenir Cleveland Clinic t-shirt. Instead, I settled on setting up a blog for her to use as outreach to other parents going through similar medical issues. Over the next four years as my wife worked as a full-time mom, she updated her blog regularly. She wrote about Donovan’s frequent doctor appointments, his ongoing medical issues, and other issues related to caring for a toddler with Noonan Syndrome.

The Legal vs the Honest Answer

Flash-forward to when she decided to reenter the outside-the-home workforce. If a potential employer Googled her name, there was a strong likelihood the company would have learned all about Donovan and his health issues. One would never ask a job candidate, “Please tell all about your family’s medical issues.” That question is illegal and violates both the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.

Yet, by running that simple Google search one could learn the exact same information. If you are being honest with yourself, if you are looking at two candidates of relatively equal strength, and one had a child with significant ongoing medical issues and the other did not, which would you hire?

Again, if you were being honest, it probably would not be the one who presented the real and significant risk of myriad absences for doctor appointments and increased health-insurance premiums. That is not the legal answer, but in most cases, it is the honest one.

Minimizing Legal Risk

Despite these risks, social-media and other internet searches hold real value for employers. They just have be done carefully and with certain built-in protections:

  • Consult with your employment attorney to develop policies, procedures, and guidelines for the gathering and use of internet-based information without conflicting with EEO and other laws. My suggestion is to use someone external to the hiring process to search for the information and then to provide a report scrubbed of any EEO or other information that would be illegal to consider.
  • Print a clear disclaimer on the job application that you may conduct an internet search, including sites such as Facebook, Twitter, LinkedIn, Instagram, and TikTok, in addition to and general searches using search engines such as Google.
  • Only conduct the search after you have made the candidate a conditional job offer.
  • Do not limit yourself to internet searches as the only form of background screening.
  • Offer the candidate an opportunity to explain or rebut questionable information that you discover.

The internet holds a wealth of information about potential employees. Be careful in how your hiring managers and recruiters handle details to avoid stepping in a big legal trap.

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