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 Heather Bussing on -
In our system the losing party pays costs of suit-- filing fees, deposition fees and costs, expert witness fees, but usually not attorneys fees.
Attorneys fees are available by contract and by some statutes. For example in discrimination lawsuits, if the plaintiff wins, she collects her attorneys fees. But if the defendant wins, the plaintiff does not have to pay the other side's fees. This is because public policy against discrimination is so strong that it slants the financial angle in the employees' favor.
But even with that potential advantage, an applicant's lawsuit is almost impossible to bring and win because of the difficulty in proving the case-- it comes down to he said, she said and the employer always has the superior resources to run up the expenses of the case.
The attorneys fees provision in discrimination laws is exactly what drove all the sexual harassment litigation in the 80's and early 90's-- along with the fact that women were just getting high enough in companies to call out some of the boorish behavior of the senior management. No one knew what a hostile environment was, so all you had to show was that men are pigs and it caused you a lot of stress. That standard has been tightened up in the last 10 years or so-- in part because most of our judges are 60 year old white guys.
Ironically, sexual harassment litigation set women back a long ways because men just became afraid to talk to them and felt even more strongly about not having women in the board room or on management retreats. In one case I worked on, the excuse was: "How will she pee off the boat?"
Enforcing the boundaries in courts often alienates and polarizes people. It never changes attitudes or hearts.
So the courts should always be remedy of last resort for wrongs against an individual.
"There ain't no justice. It's just us."
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Permalink Reply by Maren Hogan on -
"This is because in all 50 states and Canada it is perfectly legal to be an asshole."
I just choked on my mid morning snack of cheese and raisins!
GREAT post Heather!
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Permalink Reply by Amitai Givertz on -
Who won?
In one case I worked on, the excuse was: "How will she pee off the boat?"
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Permalink Reply by Heather Bussing on
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The female manager got a nice juicy settlement from her insurance company employer. But she lost her job and the male managers all kept theirs. Edicts were issued, reprimands delivered and not too much changed-- except maybe bananas were banned from the cafeteria.
Hard to say who won.
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Permalink Reply by Rayanne on -
Heather~
Thanks AGAIN for bringing a brilliant post to the pages of RBC. You have nailed so many points that it would be silly for me to go back over them... However, I will say, like Maren, I choked on my bagel in what will become the quote of 2008 - you don't mind if I use it, do you?
Fantastic!
~Rayanne
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Permalink Reply by Rayanne on
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Nice input Josh...
I love the "screen in" approach.
Joshua Letourneau said:Heather, I enjoyed your article. What struck me was how you admit to discriminating on the basis of someone having a Jr. in their last name :) I have to give you credit for having the guts to admit looking at life and other people in such myopic fashion (likely when you were much younger)....
P.S. One element I believe may be worth investigating is how those that operate with a "screen out" (instead of "screen in") mentality discriminate on the basis of worthless issues . . . because their job is to 'cull the herd of resumes'. I wonder if such a severing mindset could ever be quantified in terms of declining employment brand or significant sustained reductions in Quality-of-Hire? I'd argue that this mindset helps me as an Executive Recruiter, because the more incompetent Internal Recruitment is, the more valuable we become. It's quite the inverse relationship, wouldn't you say?
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Permalink Reply by Jon P. Meredith on -
What a radiant positing! Sound observations, logic, and conclusion. Thank you.
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Permalink Reply by Heather Bussing on
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Thanks Josh!
Discrimination is just another form of insecurity and fear. I did it--sometimes I still do. I discriminate when I need to feel superior or right (insecurity) or when I reject someone who is not like me (fear). Although I'm sure I wouldn't get too many Marines to agree with this analysis--it's a perfect example. It's us or them and in order to be able to fight or kill "them," you have to be both superior and right. The minute there is no "them" everything breaks down.
Right now my pet peeve is the militant political correctness movement that is so intolerant of intolerance they practically go around issuing pc citations for offensiveness. But in condemning their condemning others I just amp up the antagonism. So I try to see their good intentions and earnestness and go on about being my sometimes offensive self.
I have a great friend who regularly asks me if I would rather be right or I would rather be happy. They are often mutually exclusive. Righteous indignation is always suspect.
I love the screening IN idea-- it takes you straight back to considering what kind of qualifications and experience you want for the job-- include everyone who has one or more. Then what?
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Permalink Reply by Lindsey on -
Heather: Great article, I completely agree.
I have a friend on Facebook that no longer has a public profile because on an interview he did recently, they asked him about his Facebook page, some of the pictures, and what he said on it. Completely wrong, but done all of the time.
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Permalink Reply by KarenM on
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Heather you mentioned the following "Most of these characteristics are things you can find out pretty quickly during an interview." -- well at Least a Candidate Would Have the opportunity in GETTING to the interview and thus determine that
a) they were qualified for the job
b) they were being discriminated against
This "fair" "unfair" advantage (depending on which side of the fence you are on) is taken away from the candidate when don't have the opportunity to validate this information from themselves
An example.. My name is matttonen.. if you hadn't seen my Picture, one would assume by my name that I am White. You know by the name Karen I am female, and of course, you don't know if I am older, younger, handicapped or such like..
If you only have my RESUME to go by, and based upon my OBJECTIVE qualifications, you determine that I am qualified for the job, you bring me into the interview.. (again, based only on my qualifications) - I get to the interview, and see that everyone in the office is under the age of 30, and look as though they came out of the ad of Abercrombie & Finch 2004 (anyone remember that landmark lawsuit?) -- now when I get shown to the door after a 10 Min interview, there is at least a pretty solid basis for me to say, hmm, I think that I may have not been selected NOT due to my experience (they determined I was) -- but for other subjective reasons..
Personally I do believe that candidates do have the "right" to have an expectation of privacy, to which hopefully we shall see more and more states adopt remedies for protections of those rights..
this is just my humble opinion..
karen mattonen
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Permalink Reply by Nick Leslie-Miller on -
It seems from this thread that there is a consensus that discrimination of any sort is up there with child abuse in the league of evil. It is getting to the point where one day no one will be allowed to write a CV or give their name even in order not to be discriminated against. Everyone will be entitled to an interview with the interviewer having no prior information about the candidate they are about to see.
How long these networking sites are able to remain outside of the clutches of the politically correct and their lawyer friends is anyone's guess.
Imagine it- a 90 year old applying for a position as a line backer for the new York jets! Even convicted paedophiles may one day enjoy freedom from discrimination when applying for child care jobs.
I have a situation where I have a business that is thoroughly dominated by women. I have two women on maternity leave with another five turning thirty and or recently married. I am looking for account managers and guess what? I have no intention of employing any more women of or around 30 yeras of age. Is this discrimination? it certainly is, but is also an issue of risk management.
has it occurred to you that one of the reasons that employers use recruitment agents is because we carry out execute discrimination on their behalf. Long may agencies and networking sites live.
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Nick
that is why companies establish Minimum OBJECTIVE qualifications.. it also helps to "protect" themselves.. especially in an audit. It helps determine why Jon was chosen over Nancy..
regarding your situation, considering that EEO is still brand new in the United Kingdom.. what is it about 2 years now? I hope that your ROI will be cost effective.. here in America, the legal bills would make the maternity leave look like a walk in the park..
Karen
Nick Leslie-Miller said:It seems from this thread that there is a consensus that discrimination of any sort is up there with child abuse in the league of evil. It is getting to the point where one day no one will be allowed to write a CV or give their name even in order not to be discriminated against. Everyone will be entitled to an interview with the interviewer having no prior information about the candidate they are about to see.
Imagine it- a 90 year old applying for a position as a line backer for the new York jets! Even convicted paedophiles may one day enjoy freedom from discrimination when applying for child care jobs.
I have a situation where I have a business that is thoroughly dominated by women. I have two women on maternity leave with another five turning thirty and or recently married. I am looking for account managers and guess what? I have no intention of employing any more women of or around 30 yeras of age. Is this discrimination? it certainly is, but is also an issue of risk management.
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