I’ve expressed opposition to employers’ and prospective employers’ snooping through the social media accounts of their workers and job applicants. If my liberal/libertarian concerns about privacy don’t persuade bosses to keep their noses out of applicants’ Facebook profiles, local lawyer and former Brown County state’s attorney Kim Dorsett provides a sound legal argument should. In the latest Aberdeen Area Chamber of Commerce magazine, Dorsett says searching through an applicant’s social media profile could lead to trouble in court:
Federal and state law prohibit[…] an employer from making hiring decisions on the basis of certain protected characteristics, such as a person’s race, color, religion, sex, national origin, age, disability, or genetic information.
As a result, an employer is not allowed to ask illegal questions of applicants, such as age, marital status, pregnancy status, plans for more children, unrelated criminal history, religious beliefs, or plans for retirement.
However, with a few clicks of the mouse an employer can indirectly see prohibited information, such as a Facebook post announcing a pregnancy. Once this prohibited information is seen, it will be impossible to convince an EEOC investigator it was not a factor in any decision to pass on that applicant [Kim Dorsett, “Why You Should Stop Facebook Snooping on Job Applicants,” Progress, Nov/Dec 2017, p. 25].
Now, here’s your Sunday legal puzzlers: if snooping through a job applicant’s Facebook page violates employment law, what about general Googling? Suppose a blog post contains information about an applicant’s religion, or a wedding announcement shows an applicant is in a biracial marriage. Do employers dare Google their applicants when there’s a chance that such prohibited information may pop up in the search results?