Challenge Yourself!

Maria applies to work as a summer intern at a radio station. The interview goes well. A Human Resources employee conducts a background check, which includes an Internet search of Maria's name. Maria's Facebook page appears in the Internet search results. The Facebook page, which is available for public viewing, has a picture of Maria standing next to a mile marker in a T-shirt with the phrase "My Aunt is My Hero" next to a pink ribbon. Touched, the Human Resources employee conducts an Internet search for Maria's name and "breast cancer" and learns that Maria's aunt was diagnosed with breast cancer but is responding well to treatment. The Human Resources employee writes a note on the white board in his office: "Touch base with Maria: aunt's cancer treatment." The employee's sister was recently diagnosed with breast cancer, and he is interested in learning more about successful treatments. Maria is hired. Did the radio station discriminate against Maria?

1. A. No. The radio station did not discriminate against Maria; it hired her as a summer intern.

   A is incorrect.
   It was illegal for the radio station to conduct an Internet search for Maria's name and "breast cancer." It was also illegal for the radio station to publicly post "Touch base with Maria: aunt's cancer treatment." Employers may not seek genetic information, including family medical history (medical conditions that family members have), of applicants and employees. In addition, employers must keep genetic information of applicants and employees confidential, with very limited exceptions that do not apply in this example.

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2. B. Yes. The radio station discriminated against Maria by viewing her Facebook page.

   B is incorrect.
   It is not illegal under the laws enforced by EEOC for employers to use publicly available material, such as publicly available Facebook pages, to make employment decisions, as long as they do so in a non-discriminatory fashion. For example, it would be illegal for the radio station to decide not to hire Maria after learning that her aunt had breast cancer out of fear that Maria would also develop breast cancer.

   It is illegal for employers to seek out genetic information (such as family medical history) of applicants or employees. However, it is not illegal for employers to accidentally obtain genetic information from "commercially and publicly available" sources, such as newspapers, magazines, and certain online sources. Here, it appears that the radio station accidentally obtained Maria's family medical history (her aunt's breast cancer) when it accessed her publicly available Facebook page. Because the radio station was not seeking Maria's genetic information, and only accidentally discovered the information from a publicly available web site that was not likely to contain genetic information, the radio station did not break the law when it learned about Maria's aunt's cancer.

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3. C. Yes. The radio station discriminated against Maria by searching for information about her aunt's breast cancer and posting a note in public about Maria and her aunt's cancer treatment.

   C is correct.
   It was illegal for the HR employee to conduct an Internet search for Maria's name and "breast cancer." It was also illegal for the HR employee to publicly post "Touch base with Maria: aunt's cancer treatment." Employers may not seek out genetic information, including family medical history (medical conditions that family members have), of applicants and employees. In addition, employers must keep genetic information of applicants and employees confidential, with very limited exceptions that do not apply in this example.

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4. D. No. The Human Resources employee should not have conducted the Internet search for Maria's name and "breast cancer" and should not have written "Touch base with Maria: aunt's cancer treatment" on his white board. However, the employee took these actions to help his sister, not to hurt Maria.

   D is incorrect.
   It was illegal for the HR employee to conduct an Internet search for Maria's name and "breast cancer." It was also illegal for the HR employee to publicly post "Touch base with Maria: aunt's cancer treatment." Employers may not seek out genetic information, including family medical history (medical conditions that family members have), of applicants and employees. In addition, employers must keep genetic information of applicants and employees confidential, with very limited exceptions that do not apply in this example. The fact that the HR employee intended to use this information to help his sister, and not to discriminate against Maria, does not matter.

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