Do employers discriminate against candidates during the hiring process base on an observation on their social media profile/s?
December 2009
Researched and written by Aylin Ahmet
The Internet has opened up a whole new way of networking for candidates but has it
given employers another opening to indirectly discriminate against candidates during the
hiring process?
This research paper will investigate how social media tools like Facebook, Twitter and
LinkedIn are being used to search on candidates and discuss the invasion of privacy
using this information to discriminate against candidates during the hiring process. Social
networks are not just for socialising anymore, they are now being used as a job search
and research tool for recruiters and employers. The research paper will uncover
concerns with accessing potential employees social profile information without
permission and using this to assess their suitability for a position with the organisation.
Over the past 20 years the recruitment environment has evolved significantly; from an
era of newspaper advertising and hard copy resumes to a recruiting environment
enabled by technology and the internet with social networks capturing the attention of
millions globally. Recruiting has always been about networking and the more people you
know, the easier it becomes to hire – the internet is now the enabler, connecting people
on a social and professional level. Job seekers are realising the usefulness of these sites
to find jobs, keep abreast of career opportunities and research possible employers. On
the flipside, employers can just as easily research candidates through their online social
networking sites. There are literally thousands of recruiters searching for passive talent
on social networking sites – those who are employed and not actively seeking a new
position – as well as job seekers who are leveraging off these networks to find available
positions (Schawbel, 2009).
Since social networking websites, such as Facebook and Twitter began it has allowed
organisations to create profiles, become active members and start to incorporate these
strategies into their public relations programmes (Watersa et all, 2008). More broadly,
employers are using these networking sites to reach a large demographic audience for
wider business reasons such as employment branding, help launch products,
communicate with customers and increase sales.
If potential employers are examining a candidate’s online social networking profile/s as
research suggests they are, would they consider that information during the hiring
process? What if a potential employer saw a picture of a woman or a man consuming
alcohol? Or if they saw a picture of a female applicant who happened to be pregnant?
What about a candidate using discriminatory/racist language on their profile page? Will
this information negatively influence their opinion of the candidate?
Social networks are online communities that link members based on mutual interests.
Members often create a personalised profile, and connect with others via discussion and
special interest groups. The term social media referring to blogs and social network sites
online have been steering a change allowing worldwide, networked communication
instantaneously (Wikipedia, 2009). Such media describes the online practices that utilise
technology and enable people to share content, opinions, experiences, insights, and
media themselves. Any contribution an individual has made on an online profile can lead
to a prospective employer locating that information and using it when assessing
suitability for an applied position.
The huge number of social networking users makes these sites extremely attractive to
recruiters as possible sources of hire and to hiring managers who want to learn more
about potential hires. The issue arises when a prospective employer can search on
candidates and potentially discriminate based on an observation, such as a profile image
of a same sex couple, a pregnant women or a young family with children.
In a social recruitment survey conducted by online recruiter Jobvite, 68% of 115 small-
and medium-sized businesses use social networking to support recruitment efforts
(Jobvite, 2009). Statistics are indicating that more organisations and recruiters are
researching candidates on their social online profiles. A study conducted by
CareerBuilder surveying 3,169 hiring managers found that 22% screened job seekers
using social networking sites (CareerBuilder, 2009).
For the purpose of the research paper, the social networking sites that will be referred to
are Facebook, Twitter and LinkedIn. Facebook is a social networking site, allowing
members to create a profile the focuses on more personal matters such as family,
celebrations, events and hobbies. Twitter is a free micro-blogging tools that allows users
to send short messages out to their followers answering the Twitter question of “What
are you doing?”. LinkedIn is a professional networking tool that allows you to connect
with other professionals around the world.
Members use Facebook to communicate with friends and share personal information
about their lives with over 350+ million active users globally registered on Facebook
(Graves, 2009). Facebook is the largest social networking tool and is home to both
corporate recruiters and head-hunters, who tend to use it more for background checks
than for recruiting, according to (Schawbel, 2009). In fact, Careerbuilder research found
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that one in five recruiters uses Facebook for candidate background checks. According to
a Facebook Demographics Statistics Report, the number of Facebook users ages 35 to 54
grew by 276% in the last six months of 2008 (iStrategyLabs, 2009).
Twitter is a more recent addition to the social networking phenomenon and emerged
through the tragic event of the plane crash of U.S. Airways flight into the Hudson River
earlier this year with the breaking news released from a Twitter message of a passenger
onboard (Tsoulis-Reay 2009). Twitter members can post links to articles, pictures or
videos of topics of interest. LinkedIn however targets professionals and allows members
to create a profile that describes their professional background facilitating connection
and communication with other professionals. If an employer must review job seeker
information on social networks, LinkedIn may be a slightly safer choice as it’s designed
as a professional social networking site. Its purpose and content is oriented toward
professional, job-related information and contains minimal personal information
(Berkshire J, 2005). Social networking sites extend beyond Generation Y usage, currently,
more than 26 million users (average age: 41), and more than 600,000 small business
owners are logged on to LinkedIn alone (Peopleclick Research Institute, 2009).
Tredinnick (2006) defines social networking sites as those sites driven by “user-
participation and user-generated content”. Having an online social media presence
doesn’t necessarily mean it will be harmful to the individual if a prospective employer
was to search on their profile site. Results from the CareerBuilder survey found that out
of the 3,169 hiring managers surveyed, that 24% have used the information to confirm
their decision to hire a candidate (CareerBuilder, 2009). Generally, a candidate’s
contribution through these online mediums can show an individuals understanding,
intellect and outlook which can be advantageous in their job application. Social media
applications provide a variety of ways for users to become involved with organisations.
Recruiters can gain a better understanding of an individual based on a blog they may
write, compared to a resume that has the same standard fields, such as experience and
education (Schawbel, 2009). With one click, hiring managers can identify a job
applicant's voice and thoughts as well as how he or she may fit into an organisation's
culture and the specific role that needs to be filled. By using these social networking sites
a candidate has many outlets to build on their personal brand and potentially find a job
faster than other candidates in the market.
Generally, during a standard hiring process, recruiters/employers refer to a candidate’s
resume, interview, background, reference checks and other relevant
behavioural/technical tests to determine a candidate’s skill set and suitability for a new
position. This hasn’t changed. However, as the process of recruiting is evolving with the
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introduction of social recruiting referring to an employer “using social media as part of
their recruitment strategy” (Inspecht, 2009); employers now have access to many online
tools with the ability to search on a candidate’s online profiles publicly. A recent survey
by Jobvite reflects this evolution in recruitment, noting that 72% of companies plan to
invest more in recruiting through social networks (Jobvite, 2009). Of those surveyed who
plan to invest more into social media recruiting, LinkedIn is the most popular networking
tool (95 percent), followed by Facebook (59 percent) and Twitter (42 percent) (HR Wire,
2009). The percentage of employers using Facebook rose by almost two-thirds between
2008 and 2009. Through a candidate social media site a recruiter may make a decision
to terminate a candidate’s progression in the hiring process, research indicates that 34%
of hiring managers from the CareerBuilder study have used what they learned on these
social networking sites to reject a candidate (CareerBuilder, 2009).
With a down turned economy, high unemployment and thousands of baby boomers
retiring, the labour market is undoubtedly going to change and organisations have to
adapt to ensure they continue to find the best talent in the market. The job function of a
recruiter is changing, Kathy Taylor; a recruiter based in the US exclaims “instead of
taking 90 days to find people, with LinkedIn you can almost cut that in half” and that “my
searches now will run 35 to 50 days on average because I can search by keywords of a
certain skill set I am looking for." (Hutson, 2008).
When an individual becomes a member of a social networking site, a social profile is
created. You may enter very little information or a lot of information about yourself and
this tends to vary from person to person. For example, Facebook provides an information
page where you can enter various details of your personal life, the questions look like a
direct list of questions that should be avoided during the hiring process. Gender, birth
date, family members, relationship status, sexual orientation and religious views are all
available profile fields. Users may restrict this and other information on their profiles to
selected friends or may leave it accessible to a wide audience. The usefulness of social
networking site profiles often focuses on the information that is being distributed
(Crespo, 2007).
The benefits for the employer are clear and have led employers to find the best talent in
the market by researching prospects through their social online profiles, especially hard-
to-fill positions. If more employers start using social networks to make decisions about
potential job seekers and potential hires, a whole host of employment-related legal
issues would arise. This novelty and excitement around Facebook, Twitter and LinkedIn
has, in many cases, overshadowed the fact that the use of these sites for recruiting and
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hiring carries with it many legal obligations. Anti-discrimination regulations “prohibit
employers from asking job seekers information that would disclose their protected-class
status–that is, religion, age or disability” (Rees et al, 2008).
Using social networks as a source of information about applicants could cause an
prospective employer to discriminate intentionally, or unintentionally, based on
protected-class status such as race, gender, religion and so on, or on the basis of one’s
leisure activities if they do not agree with your own or with your organisational culture
(Peopleclick Research Institute, 2009).
The type of information employers typically observe on a candidates social media profile,
according to a CareerBuilder study (CareerBuilder, 2009) are; lies about qualifications,
revealed links to criminal behaviour, posted information about alcoholism or using drugs,
posted provocative or inappropriate photographs or information, bad-mouthed
comments of previous employers or co-workers, discriminatory remarks related to race,
gender, religion, etc.
Under the Equal Opportunity Act 1995 (Vic), it is against the law to discriminate against
someone because of their age, physical features, marital status, pregnancy, race, sexual
orientation to name a few (Victorian Equal Opportunity & Human Rights Commission,
2009).
In one of the most influential employment discrimination cases in the US, Griggs vs. Duke
Power (1971) recognised two legal theories of employment discrimination, disparate
treatment and disparate impact (Findlaw, 2009). Disparate treatment involves
intentionally treating members of a protected class differently than others. For example,
asking only females about their family during an employment interview and then
rejecting females with children would be an example of disparate treatment. To avoid
disparate treatment claims, it is important that everyone go through the exact same
hiring process, the same steps and the same criteria for selection. If recruiters or hiring
managers only check Facebook or LinkedIn for some applicants or evaluate information
found on these sites in a different way for different applicants, the employer could be
vulnerable to claims of disparate treatment.
In this case Duke Power required applicants to have a high school diploma and pass a
broad aptitude test. Minorities failed these requirements at a significantly higher rate
than non-minorities. Since Duke Power could not justify the high school degree and
aptitude requirements for certain lower level jobs, the court found that they had
discriminated against minorities. The employer may be able to justify the use of the
procedure as job-related and consistent with business necessity, and there may be no
other alternative selection procedures that are equally valid with less adverse impact
(Findlaw, 2009).
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Using social networks as the only source of candidates can be seen as discriminating
against potential applicants that do not have social networking profiles. Employment
lawyer Jacquie Seemann with Thomson Playford Culters, claims that in certain
circumstances employers might be indirectly discriminating against groups of candidates
by not treating all candidates in the hiring process equally (Shortlist 2009). Organisations
can conduct detailed searches or perform a general search of Facebook or LinkedIn
members which will return people and groups associated with the search terms.
Recruiters can then join these groups or ask individuals to be added as a friend for
further access to their profile information. Recruiters can also invite candidates to a
Facebook event (for example, a career fair or networking event) or suggest they become
a fan of the company page to learn more about their organisation. Even more delicately,
if a profile site does not have settings activated, an employer is able to view photos,
videos, comments and personal information from their profile site without the candidate
being aware of the recruiter’s visit to their profile.
“Indirect discrimination occurs where one person appears to be treated just as another is
or would be treated but the impact of such `equal' treatment is that the former is in fact
treated less favourably than the latter.” (VCAT, 2000)
“Any information not directly related to the candidate’s ability to work in the specific role
for the specific company would be seriously under question” (Shortlist, 2009), which
questions the relevance that a candidates social networking profile has. The Fair Work
Act includes “a new set of ‘general protections’ against other forms of discriminatory or
wrongful treatment at work” (Fair Work Act, 2009). “If an employer discovered, via a
social media site, that a candidate had made a sexual harassment or unfair dismissal
claim against a previous employer, and decided not to hire the person for that reason,
they could be found to have breached the general protection provisions.” (Shortlist,
2009). Is this an invasion of our personal privacy or standard business requirement?
“The Privacy Act dictates that companies must only collect a candidate’s personal
information that is necessary for their business,” explains Ms Maynard. Which raises the
question of whether a candidate’s social media profile is relevant to their job application
and suitability for the applied position?
Brett Iredale from JobAdder believes that “recruiters looking at public information made
public by a candidate have every right to do so and that its absolutely legitimate
Facebook and LinkedIn checks are used in conjunction with other candidate credentialing
(i.e. reference checks, resume, interviewing)” (JobAdder, 2009).
Anything we choose to post on the internet on our personal profile sites whether it is
photos, video, documents or presentations, can and will be accessible publicly by anyone
viewing it. By using and accessing Facebook, we agree and are bound to the Facebook
terms and conditions that stipulate that “When using Facebook, a personal profile is set
up, relationships and groups are formed, searches are conducted and information is
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transmitted through various channels whilst still collected by Facebook so that more
personalised features can be targeted at the individual” (Facebook, 2009). Facebook
privacy also states that “we [Facebook] cannot control the actions of other Users with
whom you may choose to share your pages and information” (Facebook, 2009). Profiles
can be set for viewing to up to the third level of connections or simply to the first level
only, depending on the profile owner's settings. This means that the individuals profile
can be viewed publicly with no strict privacy security (Recruitment Directory, 2009). By
using these social networking sites, already we are consenting to have our personal data
transferred to and processed by the networking site to third party providers.
In order to retain control over the personal information and over what information
recruiters can view on social networking sites individuals must take ownership over the
content and privacy settings on their social networking sites. If it’s on their social profile
and it could potentially be harmful to future career opportunities then they must take
responsibility for the content they chose to upload or just don’t publicly display it. In the
media recently, there have been a number of examples of how employees in
employment have caused damage to their position within the organisation. An employee
posting a malicious comment on her Facebook profile, forgetting that she befriended her
boss earlier (see image 1) or in the instance of Kyle Doyle who called in sick one day
and including a status update on his Facebook profile outlining that he wasn’t sick but
still intoxicated from the previous nights outing (see image 2).
Image 1: Sourced from (Inspecht, 2009) - Social Media: Friend or Foe in the Workplace
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Image 2: Sourced from (Inspecht, 2009) - Social Media: Friend or Foe in the Workplace
The difficulty exists when proving whether an employer made a decision to not proceed
with a job application based on an observation on their networking site. How can a
candidate prove that they have been unfairly treated?
Anti-discrimination legislation has been employed to combat discrimination but does it
necessarily still stop people from it, especially when it can be difficult to prove that an
employer has discriminated against a candidate based on an observation on their social
networking site?
Harmers Senior Associate Bronwyn Maynard says “many employers and recruiters are
not aware of their obligations under the existing Privacy Act let alone the General
Protections section of the Fair Work Act that came into force on July 1, 2009 (CareerOne,
2009).
Under the Privacy Act employers and recruiters must:
- Inform a candidate that they have collected personal information about them.
- Explain the purpose of gathering the information.
- Tell the candidate who else will see the information.
If an employer/recruiter is bound by law to maintain all necessary records and contact
made with a candidate during the hiring process, including records related to their
decision and information related to searches and contacts about a position, can this
really be enforceable?
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Candidates can request to see the notes made and information gathered about them
during a recruitment campaign on the recruitment system and request that inaccurate
information be corrected. Furthermore, if the candidate considers the information
irrelevant he or she can then make a complaint to the Privacy Commissioner (CareerOne,
2009). Luckily for recruiters and hiring managers, most candidates don’t realise that
under privacy legislation they are entitled to see notes made about them during the
recruitment screening process. Kate Southam from CareerOne stated that a
spokesperson from the Office of the Privacy Commissioner confirmed that “not one
complaint has ever been lodged by a job hunter” (CareerOne, 2009).
Information viewed by an employer on a candidate’s social networking profile needs to
be carefully assessed as to whether it will add value to the hiring decision. Just because
the candidate has a wall post about being drunk at a party, this should not rule them out
of the job unless they are to be a role model and the image does not fit with that
undertaking (SixFigures, 2009). The question remains whether there is enough
subjective assessment on a candidate’s social profile site that is viewed by hirers without
making it even easier for them to discriminate with all this additional information at
hand?
Social media searching on candidates is still a fairly new recruitment tool with not much
legislation relating to information collected from a candidate’s social networking site. As
the popularity of these websites increases, and statistics clearly indicate huge growth
surges, it is expected to become a more popular recruiting tool for recruiters/employers.
Registration levels are growing daily, around 65% of university students alone in
Australia have a Facebook account for instance, a statistic which has grown dramatically
over the past year (onrec.com, 2007).
A diligent and savvy recruiter is going to make a judgement call based on an overall
objective assessment of the candidate and not just social network site. People are
entitled to use social networks and to share personal information in a social context
without having this information used out of context. If an employer uses this information
to assess a candidate’s suitability for a position, it may bring the judging and
discrimination into the hiring process without much basis for it. A study by (Flashpoint
HR, 2009) urge recruiters to “think about the nature of your organisation, your reputation
in the community, and whether personal information is relevant to the position. You
should also consider employee relations and legal implications such as the
appropriateness and relevance of online searches on candidates.
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If a candidate chooses to make the information on their social networking available to
everyone, it is important to have some discretion in terms of publicly accessed
information. If you're going to make this information available to everyone, it is
important to have some discretion in terms of what you are making public and ultimately
your responsibility. Each individual must take responsibility for the information posted on
their profile sites to ensure it is not to the detriment of their professional reputation.
In conclusion, the research paper has raised a number of questions uncovering ethical
and legal concerns faced by recruiters/employers who source information that is not
directly linked with a candidate’s ability to perform in their role, such as personal
information available on their networking sites. Research is indicating that currently no
legislation or regulations exist to protect job candidates from discrimination of this sort
which raises doubt if a potential employer accesses personal information. This is a
growing concern given the reliance on internet usage in nearly all aspects of people’s
daily lives as people utilise social networks for much more than merely socialising.
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