Social Media Is Part of Today's Workplace but its Use May Raise Employment Discrimination Concerns

Experts Tell EEOC That Use of Social Media by Employers, Applicants and Employees May Implicate the Laws EEOC Enforces

WASHINGTON-The use of social media has become pervasive in today's workplace and, as a result, is having an impact on the enforcement of federal laws, a panel of experts told the U.S. Equal Employment Opportunity Commission (EEOC) at a meeting held today at EEOC Headquarters in Washington. The meeting was convened to gather information about the growing use of social media and how it impacts the laws the EEOC enforces.

"The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns," said EEOC Chair Jacqueline A. Berrien. "This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace."

Jonathan Segal, speaking on behalf of the Society for Human Resource Management (SHRM), explained that employers use different types of social media for several different reasons: employee engagement and knowledge-sharing, such as having a corporate Facebook page or blog to keep employees in far-flung offices aware of new programs or policies; marketing to clients, potential customers and crisis management; and for recruitment and hiring of new employees. In fact, SHRM surveyed its members over several years and found that 77 percent of companies surveyed reported in 2013 that they used social networking sites to recruit candidates, up from 34 percent in 2008.

The use of sites such as LinkedIn and Facebook can provide a valuable tool for identifying good candidates by searching for specific qualifications, panelists told the Commission. But the improper use of information obtained from such sites may be discriminatory since most individuals' race, gender, general age and possibly ethnicity can be discerned from information on these sites.

Renee Jackson of Nixon Peabody LLP, who counsels corporations, said that social media should be one of many tools used in recruitment, in order to cast a wide net for potential candidates. To the extent that employers conduct a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and only use publicly available information, not requesting passwords for social media accounts. In fact, as several panelists noted, there already exist four states with laws prohibiting employers from requesting passwords and user names from applicants/employees, a number of other states have such laws pending, and there are several proposals before Congress to do the same on a federal level.

The hiring process is not the only time that social media becomes relevant in the employment context. Lynne Bernabei, of Bernabei & Wachtel PLLC, who litigates on the plaintiffs' side, explained how use of personal social media accounts could figure into situations of workplace harassment. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. "The issue is further complicated as more employers use a 'Bring Your Own Device' policy, in which they require or expect employees to use personal laptops, smartphones, or other technology while on the job," Bernabei observed.

The other major area addressed by witnesses was the increased use of social media as a source of discovery in employment discrimination litigation, even where housed on third-party sites. Rita Kittle, a Senior Trial Attorney in EEOC's Denver Field Office, warned, however, that the increased effort to access private social media communications may have a chilling effect on persons seeking to exercise their rights under federal anti-discrimination laws.

The EEOC has addressed some of the issues surrounding the use of social media, Acting Associate Legal Counsel Carol Miaskoff testified. In one reported decision arising from the federal sector, EEOC's Office of Federal Operations found that a claim of racial harassment due to a co-worker's Facebook postings could go forward. Additionally, in response to a letter from Senators Charles Schumer and Richard Blumenthal, the EEOC reiterated its long-standing position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. Quoting from a 2010 informal discussion letter from the EEOC, Miaskoff noted that "the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used."

Commissioner Victoria Lipnic, who helped organize the meeting, said: "As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible."

The Commission will hold open the Social Media Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to: Commissionmeetingcomments@eeoc.gov.

The public comments submitted will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be publicly disclosed on the EEOC's public website, in response to Freedom of Information Act requests, or in the Commission's library. By providing public comments in response to this solicitation, commenters are consenting to their use and consideration by the Commission and to their public dissemination. Accordingly, commenters should not include any information in submitted comments that they would not want made public, e.g., home address, telephone number, etc. Also note that when comments are submitted by e-mail, the sender's e-mail address automatically appears on the message.

The EEOC enforces federal laws prohibiting discrimination in employment. More information about the EEOC, including panelists' statements, biographies and a transcript of this meeting, can be found at www.eeoc.gov.