By Rudman Winchell Attorney Matthew Cobb
Almost all of us instinctively resort to an internet search to obtain even basic information on any given subject. So it comes as no surprise that employers have been turning to the internet to screen job applicants. One source reports that 80% of employers are now “googling” job seekers to gain more information than may be conveyed in a resume and cover letter. Yet this practice is not without its risks for employers.
Anti-discrimination laws are among some of the most familiar laws that come to mind when employers consider making decisions affecting their relationships with current employees. These laws also apply with equal force to job applications or “prospective employees.” Title VII of The Civil Rights Act of 1964 makes it unlawful for an employer to fail or refuse to hire someone because of that person’s race, color, religion, sex, or national origin. It is also illegal under the Americans with Disabilities Act to refuse to hire an individual because of a physical or mental disability. The Age Discrimination in Employment Act makes it illegal to fail to hire an individual because of his or her age.
The Maine Human Rights Act also prohibits employers from failing or refusing to hire someone based on any of those protected statuses, and even goes one step further by making it unlawful for an employer to fail or refuse to hire a job applicant because of the applicant’s sexual orientation. See 5 M.R.S. § 4572(1)(A).
The Genetic Information Nondiscrimination Act (GINA) further provides that it is unlawful to fail or refuse to hire an individual based on his or her genetic information. As I explained in a prior post, the genetic information GINA protects includes the manifestation of disease or disorder in family members (i.e., family medical history).
So what does all of this have to do with using the internet to screen job applicants? An internet search may reveal information about a job applicant that would not otherwise be available from a cover letter, resume, and job interview (that’s the point of doing such an internet search in the first place). The problem this creates for employers is that it may establish knowledge of a job applicant’s protected status under one or more of the anti-discrimination laws noted above that an employer would not otherwise have obtained in the absence of an internet search. For example, an employer may learn from an internet/social media search that a job applicant is involved with a local church (religion), moved to the United States from China (national origin), has a chronic bad back (disability), just celebrated his or her 50th birthday at a local restaurant (age), has a parent who is receiving treatment for cancer (family medical history), or is in a relationship with or married to someone of the same sex (sexual orientation). A disgruntled, unsuccessful job seeker who feels he or she was discriminated against in the hiring process could pursue an employer under one or more of the laws discussed above, and argue that because the employer was aware of his or her protected status through an internet search, that knowledge influenced the employer’s hiring decision. Such claims can be difficult and time consuming to disprove.
As a result, employers should carefully consider whether the presumed benefits of “googling” a job applicant are ultimately worth it, and whether such an internet search is going to create more problems than it may prevent.
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