The Social Network For The Recruiting Industry
Tutorial Tuesday: Recruiting Law-- Discrimination and Social Networking
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4.6 after 11 votes
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 Joshua Letourneau on -
I just had this hit my email from one of my LI Groups - what are your thoughts on how they write this question? It's obvious this is an ad for a 'young' candidate on the "upside":
"I am looking for a sr. marketing manager for a med dev company in Boston. Ideal candidate will be on the “upside” of their career, approx 5-10 years experience in med dev marketing."
P.S. I understand your concerns. Between you and I, Marines (and most U.S. military units) aren't fighting for "what's right" - moreso, they're fighting for the guy next to them. I know it sounds odd, but in that environment, you have a new family. The media reports differently, but under fire, it's all about your survival and the survival of your team/family.
In the military, there is the Navy Cross or Medal of Honor offered to those that put the lives of their team members above their own. You may hear this called "uncommon valor". While not so extreme, I think organizations could use a dose of uncommon valor in terms of Internal Recruiters or HR not so keenly looking to kill candidacies . . . but again, most External Recruiters benefit from this self-centered myopia :)
Personally, I am happy to see some of our long-held intolerances melting away . . . but I do see your point about 'intolerance of intolerance'. For example, I thought our country took a big step forward in electing Obama because I do believe "All Men [and Women] Are Created Equal." However, I'm not a fan of religious fanatacism (to say the least).
Heather Bussing said:Thanks Josh!
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.
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Permalink Reply by Kimberly on -
Bravo Heather!!! I agree with you completely - the good news about social networking is that folks tend to hang out without regard to the color of the font being used. :)
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Permalink Reply by Cherese DeJesus on -
Heather,
I thoroughly enjoyed your post.
Thank you for sharing!
~Cherese
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Permalink Reply by Carly Eriksen on -
Love your point of view on things Heather! Very amusing and in my opinion, spot on!
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Permalink Reply by Maureen Sharib on -
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.
Heather, I can hardly type this I am laughing so hard...so might I assume that when the "geezer lawsuits" start coming, fast and furious, there might be a lag in understanding in the courts that will give the "early filers" an advantage in award winnings, helped along (especially) by the fact that "most of our judges are 60 year old white guys?"
Oh boy, (rubbing my hands together gleefully) where does the line start?
;)
“The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.” ~ Albert Camus
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Permalink Reply by KarenM on
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Nick,
you made the following comment "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."
I wanted to address this VERY important Misunderstanding in our industry. Under the Uniform Guidelines of the Employment Selection Process (the DOL, EEOC and all the Alphabet Agencies follow this guideline) Recruiters, Employment Agencies, (all third party individuals working on behalf of the employer OR themselves) are as Equally and at times EVEN MORE legally obligated to follow the legal guidelines of the Recruiting and Selection process and avoid discrimination.
Using an employment Agency Also does NOT relieve the company from their responsibilities to provide equal employment opportunities.
It has been Known (no I am not going to cite cases here) for Recruiters to Share the Legal blame and fine with their clients
2 An Audit from the OFCCP and / OR EEO - and Electronic Discovery can uncover how YOU as an individual would sort resumes, and how you chose those candidates
3 - It is not expensive for a candidate to "prove" that a company discriminated. THE EEO and/or State Federal Agency WILL investigate (on our tax payer dollar) All claims brought to them. IF the candidate is given the right to sue by the EEOC and the candidate CHOOSES to go to a private attorney the Investigation Reports can be turned over (for free) to the attorney..
4 - these cases DO NOT clog up our courts.. Yes there are over 400 employment lawsuits a day, but the scary part is that 90+ PERCENT of all Charges don't go to court and are actually Settled - one way or the other.. mostly by arbitration w/ the eeoc. Many companies choose to go this route.. because The average EEOC complaint processed from beginning to end (including class action cases and those that go to the Supreme Court) are estimated to average $250K - and that is NOT the cost of the "fine" and "penalty" that.. is just the Legal costs.. Not to mention the Costs of the Mandatory Education that Generally follows
Many of these "cases" we do NOT hear about because many of us prefer to have GAG orders in place to make sure that our clients do not hear about it..
5 - Yes there are paranoid lawyers, and there are lawyers who have created unneeded liability.. THOSE lawyers You Should Be scared of, and they are the reason You may definitely want to make sure you are not taking those Expensive chances.
6 - the Economy Sucks today, and don't you think it is our responsibility to make sure All individuals have a fair chance at a job based upon their SKILLS? Ability to do the work? Let's not set our country back more, especially with the fallacy that we as recruiters are not Legally Liable or Legally responsible to hold up to the law, and that companies can hide behind us.
I am NOT an attorney, I don't play one on T.V, but I have sat through over Hundreds of Hours of training regarding this matter! Some directly with the EEOC and individuals from the DOL, as well as from the IRS. When I don’t know the answer, I know to ask them directly…
All I can offer to you is a suggestion that education in this area is available, and cheaper than having to deal with the legal obligation later
Lastly.. I was asked once, why my posts are so long, and why do I talk about the law so much.. Those comments scare me.. My posts are long and I speak about the law because I care about My industry.. and I Care about the people who come into this industry not knowing the laws and how EVERY step of the recruiting process there is a law or agency that affects what we do every day.. and I care about the People whose lives and businesses we touch Every day…
That is why I take the time to write these posts, especially knowing that there will be some who will consider me the anti.??? whatever word they choose that day.. There are some of you who appreciate this info.. to those who don't know why you should.. I suggest please.. find out.. especially today, as the economy continues to suffer, employment lawsuits go through the roof.. as employers get more selective in the process..
Karen Mattonen
http//www.hirecentrix.com
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I forgot an important caveat to the below comment...
It Continues NOT to be expensive for Candidates to Sue an employer since the EEO and /or the Legal body who did the majority - if not all - of the investigative work - the Majority of Attorneys will take these cases on Contingency..
See the ads on tv that say it won't cost You a penny unless We WIN the case for you?? well.. that applies to Employment Lawsuits as well.. lot of hungry lawyers out there willing to fight for the candidate.. Unfortunately they are not as generous to the employer.
I don't like it as much as you do. I WAS a victim of an investigation. Thankfully I had the paperwork to prove I did nothing wrong and the investigation was curtailed.. but the stress was awful.. and had I not had the available Proof, and paperwork, email trail, and fax trails.. we wouldn't be having this conversation today...
I know what it is like to be accused of something that I didn't do.. but, at the same time, i have also had clients Who want to use me to discriminate.. so I have seen that discrimination is indeed a huge problem!
Formal Education from the experts is necessary in our industry. Remember 20+ steps in the recruiting process.. and ALL 20+ steps have some form of Employment law - state and /or federal governing our actions.
Don't be scared, don't be paranoid.. gain knowledge, gain insight, and stop driving in the dark..
This is again My humble opinion...
Karen mattonen
KarenM / Hirecentrix.com said:3 - It is not expensive for a candidate to "prove" that a company discriminated. THE EEO and/or State Federal Agency WILL investigate (on our tax payer dollar) All claims brought to them. IF the candidate is given the right to sue by the EEOC and the candidate CHOOSES to go to a private attorney the Investigation Reports can be turned over (for free) to the attorney..
Karen Mattonen
http//www.hirecentrix.com
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Permalink Reply by Heather Bussing on -
Maureen,
It will be interesting to see what happens as the Boomer workforce ages and no one can afford to retire. We will get a lot of experienced people at the top of organizations. So organizations will have to change or a lot of old people are going to start getting culled. This is what John Sumser has been grappling with lately.
I'm not sure how it will play out in the courts. First, the decision makers within the companies are all going to be old-- so it may end up being really hard to show that age was the discriminating factor.
There will also be some really interesting challenges on whether age=cost. At some point, someone will make the case that it is okay to consider the economic factors even if the result has a negative impact on older workers. Older workers cost a company more-- they are experienced and demand higher salaries, retirement contributions are higher because they are a function of wages and health care premiums are entirely dependent on age. The case will look like a choice between hiring the lower cost employees or going out of business.
I'm also not sure that judges are going to be sympathetic. In their world everyone is old because it takes so long to get through law school and then gain the experience and political clout to become a judge. So they may not be able to relate as well to a world where old people are facing discrimination because it doesn't happen in their reality.
And I really love Camus. Great quote!
Hey Karen,
I really appreciate the care and energy you put into your comments. Thank you for thinking so hard about my posts and bringing your perspective to the discussion. Lively debate about the difficult issues is always an important part of finding the path through.
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Permalink Reply by Lalura on -
Too true--discrimination is alive and well here in the good old US of A. Candidates are getting smarter about it tho--cutting off resumes after 10 years to avoid age discrimination. If you can get your foot in the door and get an interview.... Whatever works!
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Permalink Reply by Joshua Letourneau on
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Bald heads can be discriminated as well :) They can also be leverage, depending on who is doing the interview.
So can facial hair . . . and what someone thinks of you after they know you have a tattoo(s).
So can someone who comes across as a "Closer" to someone who is a deferential, beta male . . . as can someone who is humble while interviewing with an HR rep or Hiring Manager more likened to an Alpha-Baffoon than a true Alpha-Male. (i.e. they're more Australopithecus Afarensis than Homo Sapien.)
Then, what about those who get discriminated against but are not part of a 'protected class'? I'll tell you what - nothing. If you're not 'protected', then you're betting off wearing a Toga in a blizzard.
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Permalink Reply by Heather Bussing on
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A couple people have said that it's really important to get an interview-- implying that somehow the right candidate with the "wrong" characteristics can overcome discrimination through the interview process. I don't know if this is true or not.
What are your thoughts?
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Permalink Reply by Nick Leslie-Miller on -
Which karen is why the UK is so far ahead of the USA in recruitment. It seems that an American recruiters job is more about compliance with law and process whereas in the UK it is more about efficiency (I dont want any more momen to work for me so why waste time?) and the skills of communication.
KarenM / Hirecentrix.com said: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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