The Social Network For The Recruiting Industry
Tutorial Tuesday: Recruiting Law-- Discrimination and Social Networking
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Lately my email has been full of ads for seminars about social networking sites and worries about discrimination and privacy issues. The concern is that employers somehow may be liable for using social networking sites as a recruiting tool.It's mostly hogwash. Lawyers are highly trained in paranoia—you get that way after a few years of dealing only with the situations that go sideways and upside down. So every year some very smart lawyers decide that the latest technology will create new and unseen liability and that everyone should get their knickers in a bunch worrying about being sued for millions dollars.
Often new technology does create new avenues for liability—it's just that the technology is usually not the cause of the problem. It's people behaving badly while using the technology. People have been behaving badly for centuries, so the issues are rarely that new.
One of the latest concerns is that social networking sites like Facebook, MySpace and Linkedin give potential employers access to much greater and much more personal information than is usually available on a resume. This allows an employer to take into account illegal factors in making employment decisions. For example, employers can see from photographs an applicant's race, national origin, age, sexual preference or whether a candidate or spouse is pregnant. They might even be able to figure out whether an applicant may have a disability or even a drug or alcohol problem.
Most of these characteristics are things you can find out pretty quickly during an interview. So learning about a candidates "protected" characteristics before the interview or after the interview just doesn't make any difference. For employers who discriminate based on illegal factors, it's just a matter of timing.
Using social networking sites to learn about candidates neither increases or decreases the liability for illegal discrimination.
It's also important to understand that bringing an applicant's discrimination lawsuit is very expensive and difficult to prove. Lawsuits cost an obscene amount of money. Most unemployed job applicants don't have the resources to pursue it. A rejected employee also has a duty to go forward and find new work as soon as possible. They have to get a different job for economic reasons anyway.
Unless there is clear evidence of discrimination, there are usually not enough damages at stake to make the case worth bringing.
To win the lawsuit, the applicant has to prove that she did not get the job because the employer took into account an illegal characteristic and the discriminatory consideration was a substantial factor in making the employment decision. While discrimination is absolutely alive and well, employers are much more savvy in hiding it. Getting evidence of discrimination from the outside is almost impossible.
Unless an employer says something like "Oh Alex, we didn't realize you were a girl. We don't hire girls to work here, unless you will sleep with me," it's nearly impossible to prove that someone didn't get a job because of a discriminatory factor. In that case, the employer finding out from Facebook that the candidate is female and not his type anyway saves everyone a lot of time and energy.
So the bottom line, is well, the bottom line. It's too expensive to bring an applicant's discrimination lawsuit and they are incredibly difficult to prove—even if you find out from MySpace that an applicants is a pregnant female gay Hispanic over 40 in a wheelchair and don't hire her because of that.
Many of you will exclaim that discrimination is a horrible thing and ask how I can be so insensitive and glib. I agree completely that discrimination is both illegal and immoral and should not be tolerated either professionally or in one's personal choices. But as a practical matter, it happens every day and people get away with it.
This is because in all 50 states and Canada it is perfectly legal to be an asshole.
With at-will employment there are a kazillion, legitimate, non-discriminatory reasons to reject a job applicant. They include that the person has red hair, she farted during the interview, or that he listed AC/DC and The Little Mermaid as being a favorite on a social network page.
We would like to think people don't get jobs because they are not the best qualified candidate. But the truth is that people don't get jobs for all kinds of weird and wacky, discriminatory reasons.
I used to reject all job applicants who had a Jr. or a numeral after the name on the grounds that they would be spoiled and pretentious. It had a disparate impact on white male applicants and was easily illegal under theories of reverse race discrimination and gender discrimination. But no one ever knew that was the basis for rejection except me. My colleagues only saw the resumes after I had culled every one that had a number or a junior. I didn't even read past the names.
I had to change my attitude because I work with a Jr. who is one of the kindest, funniest and down-to-earth people I know. And my partner actually named his son after his father making Raymond the 3rd . Ray even uses III after his name. He's not pretentious at all.
My theory that all the world's ills were caused by 50 year old white men was hard to hold on to when I fell in love with one.
While great strides have been made with civil rights in our culture, the work is not done. But a lawsuit never changed or opened a mind.
Rather, it is community and social networking that break-open presupposed ideas about people, allow dialogue about cultural and generational differences and cause change to happen. My sense is that social networks sites actually do far more good to change discrimination than to perpetuate it.
Next time: Privacy Issues: Cyber-Sleuthing versus Cyber-Stalking
Heather Bussing is a California attorney who has been practicing business and employment law for 21 years.
Replies to This Discussion
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Permalink Reply by Amitai Givertz on -
Brilliant post, Heather. Thank you!
Ami G. Jr.
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Permalink Reply by Maureen Sharib on -
Thanks Heather for being a voice of reason amidst the crazy cacophony. This is priceless:
"It's people behaving badly while using the technology. People have been behaving badly for centuries, so the issues are rarely that new....because in all 50 states and Canada it is perfectly legal to be an asshole."
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Permalink Reply by Amitai Givertz on
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Maureen, stay a while...
Just "because in all 50 states and Canada it is perfectly legal to be an asshole" doesn't mean in all 50 states it is legal to act like one, does it?
The real issue here is that you can act like an asshole and get away with it because justice comes with a price. The scales of justice are weighted to favor a balance of power.
We need to define the difference between law [to protect] and justice [to defend]. The two are not synonymous here.
Being pragmatic doesn't make it right, even if you're an asshole, and especially if you're the injured.
Maureen Sharib said:Thanks Heather for being a voice of reason amidst the crazy cacophony. This is priceless:
"It's people behaving badly while using the technology. People have been behaving badly for centuries, so the issues are rarely that new....because in all 50 states and Canada it is perfectly legal to be an asshole."
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Permalink Reply by Maureen Sharib on
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Ami, I could not agree more. If some people didn't act like assholes how would we ever be able to define any kind of boundaries? Bad behavior teaches good. Even assholes serve a purpose.
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Permalink Reply by Vikki Hawkins on -
Heather,
Great article, thanks!
Vikki
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Permalink Reply by Jim - medXcentral on -
Fantastically honest. True to the core. And fundamentally applicable in nearly all situations where, to see justice served (or to even stand a chance to see justice served), you must first be able to afford to "buy in" to the game. To win.. you must be able to afford to "raise the stakes" during your case (ie; expert witnesses and an expert attorney who is "connected" within the system).
I face this disparity personally... in a parental alienation scenario where I am the alienated. Hideous. And, there is only one thing that will even begin to tip the scales.... money.... a boat load of it. Just as the discriminated in the article above is forced to ignore "truth" and "justice" because of the need to "go get a job"... I am forced to ignore "truth" and "justice" to "go get the money" needed to even consider getting back into an ugly, ugly battle.
Injustice is disturbing, to say the very least. And, I do agree, and hold hope, that social media will help us all "see" more clearly the injustices that exist in our world as we've designed it. Hopefully, this will initiate "real change" and create forward growth and progress as we become a global society.
Fantasy? Probably... for now. But, if we don't dare to believe, we can trust it will never happen. As you can tell... I'm a proponent of social media. I believe each and every user of any online system must take responsibility for their actions...as they should in life. After all... is this not simply "life online"?
Thanks Heather. - Jim
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Permalink Reply by Maureen Sharib on
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What if...
...the loser in a legal confrontation had to foot the other party's legal bills in addition to their own? Would this not CUT DOWN on some of the filing nonsense, unclogging our courts and opening up other avenues of negotiation?
Huh? Don't they do this in the U.K. , from whence (isn't it?) our legal system was first modeled?
Makes IMMINIENT sense to me and has for a very long time.
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Permalink Reply by Jim - medXcentral on
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Maureen.. great concept.. however, if the "field of play" is not even, if the "rules of engagement" are not clear and if the system itself is slanted, there is no "fair" competition. If the competition is not "fair" then "winner" and "loser" become arbitrary terms. This defeats the logical nature of the approach you mentioned. Other than that... I agree with the management of motivation.
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Permalink Reply by Maureen Sharib on
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It's a start, Jim, it's a start. Nothing happens overnight.
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Permalink Reply by Amitai Givertz on
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Maureen in the U.K. the loser bears the costs. But the cost of litigating in the first place is the barrier to justice being done, or undone depending on your bankroll.
To "unclogging our courts and opening up other avenues of negotiation?" what would be the incentive for two parties to arbitrate a dispute? As I understand it, in the case of wronged job candidate, the economics of litigating is itself the means by which the system is kept clog-free. That and the "pragmatic approach" to brushing the issue under the carpet...
Maureen Sharib said:What if...
...the loser in a legal confrontation had to foot the other party's legal bills in addition to their own? Would this not CUT DOWN on some of the filing nonsense, unclogging our courts and opening up other avenues of negotiation? Huh? Don't they do this in the U.K. , from whence (isn't it?) our legal system was first modeled? Makes IMMINIENT sense to me and has for a very long time.
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Permalink Reply by Tina Huckabay on -
Rather, it is community and social networking that break-open presupposed ideas about people, allow dialogue about cultural and generational differences and cause change to happen. My sense is that social networks sites actually do far more good to change discrimination than to perpetuate it.
This is what I think is the most significant thing happening at RBC....for those that are truly willing to hear what others are offering we can all learn something about letting go of our own predisposed pass/fail criteria.
Thanks once again Heather....we are lucky you are here!
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Permalink Reply by Maureen Sharib on
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Looks like an enhanced biz opp to me if ever I saw one! (financing litigation is already done)
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