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Bryant Whitten, LLP

Social media access may bring illegal bias in hiring practices

Discriminating against an employee is illegal, whether or not the discrimination was intentional. The alarming trend of employers requesting access to an applicant's Facebook account can result in an employer unwittingly discriminating against a prospective employee based on information learned in the review of the applicant's account. Since California has some of the most comprehensive laws preventing employment discrimination, employers must follow strict rules in their interviewing and hiring practices.

Since the passage of the Title VII of the Civil Rights Act in 1964, employers have been prohibited from discriminating against employees, or prospective employees based on race, color or national origin. An employer can learn a lot about an applicant by reviewing social media posts, including relationship status, group memberships, as well as cultural events and activities. Federal law prohibits employers from accessing such information.

According to one study conducted by the Stern School of Business, employers often associate a female's "married" status with motherhood and assume she will have less time to devote to her job. If you are married and a prospective employer views your Facebook status, you are among a group that could face illegal discrimination.

In the state of California, the LGBT community is protected by a number of state laws. The California Fair Employment and Housing Act strictly prohibits the solicitation of sexual orientation information during the hiring process. Employment bias can easily result from viewing an applicant's posts and account details that contain information pertaining to his or her sexual orientation. Accessing this information is illegal in the state of California.

By requesting access to a prospective employee's personal information, employers are setting themselves up for potential bias and risk violating state and federal anti-discrimination regulations. Employers should be prohibited from requesting such information. If you feel you may have been discriminated against either on the job or in the hiring process, consult with an employment law attorney who can help you understand your rights and determine if there has been a violation of those rights.

Source: The Guardian, "Quick Takes: Employers Asking For Facebook Passwords," Ayan Kusari, April 1, 2012

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