What to Do When a Job Candidate's Social Media Triggers Red Flags

 

Roy Maurer By Roy Maurer October 24, 2019
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​What if a perusal of your top candidate's Facebook page leads to the discovery that he or she is an online racist?

That's the question employment attorney Eric Meyer put to a crowd of recruiting professionals at the recent ERE Recruiting Conference in Washington, D.C.

Recruiters and hiring managers should know that evaluations of applicants should be focused on job-related skills and qualifications. The jury is still out on whether screening candidates' social media is a good idea or too fraught with bias concerns and legal liability.

But what if a candidate engages in offensive or controversial subject matter on social media? Is that a disqualifier? Or is personal expression away from the workplace off limits?

Meyer, a partner in the Philadelphia office of FisherBroyles, polled the audience and got a range of responses:

  • Immediately reject the candidate.
  • Make the decision to reject or proceed depend on the duties of the role.
  • Don't screen social media at all.

"If I'm recruiting, and I find someone who has engaged in clearly racist speech—something that, if it happened in the workplace, there would be a complaint registered in HR or a charge filed with the EEOC [Equal Employment Opportunity Commission]—then I'm concerned about hiring that person," Meyer said.

"If I bring that person in and nothing happens, that's great. We dodged a bullet. But if I bring that person in and something does happen, and it turns out that we knew that this person had these thoughts before being hired, the company will have a tough time defending itself because they knew this was going on."

Meyer said that one of the common employer defenses to race- or gender-discrimination claims is showing that the company took reasonable steps to end the discriminatory behavior when it became aware of it.

"If someone comes to me and reports racist statements, and I know that the person has engaged in this behavior online and I tolerated it, I will have a tough time making the 'reasonable steps' defense," he said. "The reasonable step to prevent this issue was not to hire the person."

[SHRM members-only toolkit: Recruiting Internally and Externally]

Political Speech

Meyer said that he wouldn't let someone with blatantly racist social media posts in the door, but what if the candidate's Facebook or Twitter posts fall into a gray area? What about someone expressing his or her political viewpoints that may not align with the company's positions? Diversity and inclusion are important, and you want to have a well-rounded workplace. So what do you do?

"Whatever you decide to do, you must be consistent," Meyer said. "If certain words or attitudes are disqualifying, they must be disqualifying across the board. If you have policies about political speech, it should be consistent across the board."

Meyer pointed out that in a handful of states, people cannot be retaliated against for engaging in political speech. However, "the right does not exist under federal law," he said. "If I didn't want to hire someone due to their political beliefs, I can do that in states that don't have political-speech retaliation laws."

Should You Google Your Candidates?

There's more to the debate over whether to check out candidates' online presence. On one hand, there are concerns about exposing yourself to claims of bias if you find out the person's sex, race or other protected class while searching. But some other employers would like to know as much as possible about potential hires to ward off claims of negligent hiring.

"Know the law," Meyer said. "If you outsource social media screening, it will have to be compliant with the Fair Credit Reporting Act." But there's nothing regulating recruiters' and hiring managers' browsing candidates' social media in-house.

Meyer recommended documenting any decision not to hire someone due to controversial online behavior. He also advised "having a little compassion, a little understanding, consider the source, and account for how old the posting is."

What Not to Do

An Austin, Texas, digital marketing company used a photo of an applicant in a bikini on her Instagram account as an example of being unprofessional. The company posted the photo with some snarky commentary about the applicant's decision-making. The move backfired when the stunned applicant (whose Instagram bio now reads "an unprofessional bikini model") tweeted about it, garnering thousands of supporters and dozens of job offers, while the company shut down its own social media, and the CEO was compelled to make a public apology.  

Meyer explained that it is not illegal to disqualify a candidate for a social media profile that doesn't fit the organization's brand.

"If I am hiring for a church or religious organization, this [bikini] image could be disqualifying, because we are trying to project a certain image. It can be really hard to draw the line between what happens on and off the clock when evaluating candidates, but this was not one of those cases," Meyer said.

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