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Jan 06, 2020


Social media keeps people in near constant contact from all around the world. If you want to know what that kid you sat next to in high school chemistry twenty years ago is up to today it’s as simple as clicking on their Facebook page or doing a Google search. The convenience of having a window into individuals’ personal lives through social media has changed many aspects of society, including how employers conduct their hiring processes.

Typically, the hiring process includes filling out an application, conducting a background check, and having an interview. It is much more common now that as a part of the background check, employers use social media to gather information about the applicant. Using social media in the hiring process could be beneficial because it allows the employer to confirm that the applicant is qualified for the position. However, employers should be aware that discrimination claims may arise from checking an applicant’s social media to make hiring decisions. Social media and internet searches can reveal the potential employee’s race, gender identity, sexual orientation, religion, national origin, marital or family status, disability, or other characteristics that could improperly influence a hiring manager’s decision.

The following case addresses a claim of employment discrimination stemming from an employer’s internet search of a job applicant.

Gaskell v. University of Kentucky
The facts of this case are relatively straightforward. Mr. Gaskell applied for a position at the University of Kentucky (“UK”) but was not hired. Although UK conceded that Mr. Gaskell had more education, experience, and was overall more qualified for the position, they chose to hire someone else. UK’s stated reason for this decision was that the hired individual had more desirable qualities than Mr. Gaskell.
A committee was appointed to conduct the hiring process, which included reviewing applications, interviewing candidates, and checking references. After the written applications and phone interviews were reviewed and conducted, Mr. Gaskell was ranked first in the running for the position. Members of the hiring committee even stated Mr. Gaskell was “clearly the most experienced” applicant and had “already done everything they could possibly want” for the position. However, one of the committee members conducted an online search of Mr. Gaskell. She found Mr. Gaskell’s personal website which referenced religious topics, including an article referencing religious topics. She circulated this information to the entire committee. It was the committees concern that Mr. Gaskell “blended religious thought with scientific theory.”
The committee sought advice as to whether it could consider the information found on Mr. Gaskell’s website. It was ultimately concluded that he would not be disqualified from the position. Further, the committee was not to evaluate Mr. Gaskell on the question of religion but could consider whether the statements were “good science”. After review of the “scientific integrity” of Mr. Gaskell’s writings, the hiring committee chose to hire a different applicant. Mr. Gaskell then filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) charging UK with religious discrimination. When he received a Notice of Right-to-Sue letter from the EEOC, Mr. Gaskell proceeded with legal action.
Although Mr. Gaskell and UK ultimately reached a settlement on the matter, the court determined that there was a genuine factual issue about whether religion was a motivating factor in UK’s failure to hire Mr. Gaskell. Had a settlement not been reached, the matter would have been presented to a jury.
The Takeaway:

This case illustrates just one example of how an employment discrimination claim may arise under Title VII of the Civil Rights Act. It is important that social media is being used in the right way as it is becoming more prevalent in the hiring process. The following are some considerations for employers before using social media and the internet to weed out job applicants:

1. Have an HR professional or someone else that is knowledgeable on EEOC rules and regulations be the individual checking the applicant’s social media. They are more likely to know what may be legally considered during the hiring process.

2. Identify the type of information that should be reviewed on social media prior to conducting any search. Ensure that the information the searcher is looking for is job-related. For example, an employer may want to review the professional history of its applicants.

3. Wait to check social media until later on in the hiring process or after the applicant has already been interviewed. At that point the applicant’s membership in a protected class is likely already known.

4. Only search “public” information. Do not try to gain access to information by using a fake account or someone else’s information to gain access to private information. This practice could lead to not only a discrimination claim, but a claim for invasion of privacy.

5. Be consistent and check the social media accounts of either all or none of the applicants.

6. If a hiring decision is made based on something found on social media, keep a record or a print out of the social media content which the hiring decision was made on in case the damaging content has been deleted by the time the decision is challenged by the applicant.

7. Keep adequate documentation throughout the hiring process. It is important that an employer is able to identify the legal, nondiscriminatory basis for its hiring decision.

Employers are well advised to seek legal counsel when confronted with possible employment discrimination.

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Marissa R. Cerkoney l Lawyer
2272 Eighth Street West l Dickinson, ND 58601
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Allison Mann l Lawyer
2272 Eighth Street West l Dickinson, ND 58601
701.225.LAWS (5297) tel
701.225.9650 fax