EEOC Issues Pregnancy Discrimination Warning to Employers Who Screen Job Applicants’ Social Media Profiles

A job applicant’s social media profile, which may include information and photos from sites like Facebook and Twitter, can be a useful tool for employers who are assessing a large number of prospective employees. The information an employer might obtain from these sources, however, can also potentially expose the employer to liability under various anti-discrimination laws. The Equal Employment Opportunity Commission (EEOC) recently warned employers about their exposure to lawsuits if they discover that an applicant is pregnant, disabled, or part of another group protected from unreasonable discrimination in employment. Job applicants and employees, who would be the victims of an employer’s discrimination, should be aware of how employers and the EEOC view the use of information obtained via social media.

The federal Pregnancy Discrimination Act of 1978 amended the list of prohibited acts of gender discrimination in Title VII of the Civil Rights Act of 1964, explicitly adding discrimination on the basis of pregnancy. The New York State Human Rights Law and the New York City Human Rights Law provide similar protections at the state and municipal levels. These and other laws generally prohibit employers from basing hiring decisions on specific matters protected by antidiscrimination laws. This includes questions regarding disabilities, marital status, race or national origin, and pregnancy.

The New York Times reported last year on a company that researches job applicants’ social media histories for employers. The article cited a survey claiming that seventy-five percent of job recruiters research candidates online, and that seventy percent have rejected one or more candidates because of something they found online. The company profiled in the article appeared to focus on evidence of illegal activity, such as drug use, but its searches can easily turn up evidence of information protected by antidiscrimination laws and other employment laws.

During an EEOC workshop in Washington, DC on August 24, 2012, an EEOC representative described the risks employers face by reviewing applicants’ social media activity. Social media has made information available to prospective employers like never before. If an employer learns that a job applicant is in the early stages of pregnancy from that applicants’ social media, then does not hire that applicant, the applicant could plausibly accuse the employer of discriminating based on her pregnancy. Applicants should try to be aware of what information prospective employers can access.

Some states have acted to protect employee privacy. According to the National Conference of State Legislatures, fourteen states introduced legislation in 2012 to prohibit employers or schools from demanding access to employees’ or students’ social media accounts, and the bills became law in four states. Illinois and Maryland enacted laws governing employers, while Delaware enacted a law governing educational institutions. California enacted laws governing both employers and educational institutions. The New York Legislature introduced several bills on the issue in 2012. These laws relate more to a general right of privacy for employees and students, but they may have an impact in preventing prospective employers from snooping in applicants’ social media posts.

At Phillips & Associates, we work to safeguard the rights of employees and job seekers in the New York City area who have experienced pregnancy discrimination and other forms of employment discrimination in violation of federal, state, and local laws. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation.

More Blog Posts:

Former Bank VP Adds Retaliation Claim to Pending New York Pregnancy Discrimination Lawsuit, New York Employment Attorney Blog, October 5, 2012
Pregnancy Can Still Mean Penalties at Work for Many New Yorkers, New York Employment Attorney Blog, September 14, 2012
Study Links Discrimination Against Pregnant Women to Health Problems in Newborns, New York Employment Attorney Blog, August 30, 2012

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