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“Using Social Media to Discriminate”: Please Read the Fine Print

December 2, 2013 | Employment Discrimination, Social Media and Technology, Currents - Employment Law

A recent study of how hiring managers respond to phony social media accounts has been featured in some outlets with bold headlines along the lines of “Employers May Use Social Media to Discriminate.” Here is what the study, by researchers at Carnegie Mellon, really concluded:

The study involved sending dummy resumes to employers and creating dummy social media accounts to accompany those resumes. (While the subject matter of the research is undeniably important, is anybody else furrowing their brows a little about, um, lying to employers for purposes of this study?)
The phony candidates were designed to test attitudes about (a) Muslims and (b) sexuality.
One finding of the study is to confirm that employers do look at social media profiles. Of course this is not surprising. The politically correct thing for employers and their lawyers to say these days is that they do not advise employers to study applicants’ social media presence. I maintain that a more finely tuned bottom line is that employers should not look at social media in an unstructured way that does not thoughtfully and systemically, after being scrutinized by legal counsel, cull potential job-related inquiries from loose inquiries that can raise discrimination issues.
The study found that the gay and straight candidates did not have notably different success rates in any part of the country. Not to ruin the “employers discriminating” headlines, but that’s good news.
The headliner was that the Christian candidate fared better than the Muslim candidate in getting contacted for the next step in the interview process. This difference was more pronounced in conservative areas of the country .
The study did not examine discrimination based on race, age, disability, sex, all of which are the subject of at least six times more EEOC charges than religious discrimination. Could employers use social media in a discriminatory way in those areas? Absolutely. But that’s not this study.

We can all agree that job discrimination against Muslims is not acceptable, and that employers should – for various reasons – take steps to prevent any such discrimination. Of course this is more than an employment issue, it is a cultural and societal issue, and the findings are not entirely surprising based on attitudes we encounter in everyday life and popular culture about Muslims, particularly in the last decade or so. If this is an area where we as a society need work, it is valuable to highlight that, but please read the fine print before buying into any sweeping headlines you may see, and I continue to think there is a bit of social-media-in-hiring hysteria that prevents us from thoughtfully balancing the legitimate interests on both sides of that equation.

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