Web-Search Pitfalls in Hiring
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Web-Search Pitfalls in Hiring

July 2011

There's nothing wrong with using the Internet for networking, making new friends, or pitching for business. However, searching the Web for information about someone who is trying to get a job with your company is another matter. Of course, you can Google a job applicant, but keep some legal guidelines in mind.

Federal law prohibits discrimination when making employment-related decisions (Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e- 2000e-17). So, certain subjects regarding job applicants are very sensitive. A company cannot hire, discipline, or terminate workers based on any of the following protected factors: race, color, national origin, religion, and gender.

The Age Discrimination in Employment Act (29 U.S.C. § 621-634) adds to this list with a prohibition on discrimination against individuals who are age 40 or older. Also, the Americans with Disabilities Act (42 U.S.C. § 12101-12300) bans discrimination against "qualified disabled" individuals. Many states have additional prohibitions: California gives protected status to sexual orientation, marital status, pregnancy, cancer, political affiliation, genetic characteristics, and gender identity. And keep in mind that "employment decisions" are defined broadly and include promotion, demotion, compensation, and transfers. So, decisions about current employees based on Internet searches could also run afoul of the law.

People commonly post information related to these protected factors on their Facebook pages. Thus, the challenge for employers who are researching job applicants--or monitoring the social media activity of their employees--is to not let protected-status information bleed into their decision making. Under federal and state law, employers should not make employment decisions that are "motivated by" a person's membership in a protected class.

The University of Kentucky learned this lesson the hard way after paying $125,000 to settle a lawsuit for religious discrimination. The news media covered the federal case (Gaskell v. Univ. of Ky., No. 09-244-KSF (E.D. Ky. filed July 10, 2009)) as a rare example of a lawsuit brought by a scientist for religious persecution. The case also demonstrates the legal risks to looking at the social media activity of a prospective or current employee.

In 2007, the university established a search committee to find a director for its observatory. The committee included members of the physics and astronomy department, its chairman, and a staff member. Seven applicants were under consideration, and Dr. C. Martin Gaskell of the University of Nebraska-Lincoln (UNL) ranked as the number one candidate.

During the search process, the staff member decided to research Gaskell on the Internet. She found Gaskell's UNL website, which was linked to his personal website, which contained an article titled "Modern Astronomy, the Bible, and Creation."

The staff member circulated the article within the search committee. The members also found notes on Gaskell's personal website from a lecture bearing the same title that he gave at UNL in 1997. Because the notes discussed biological principles, the committee showed them to faculty in the university's biology department. The biologists expressed concern about Gaskell's "creationist" views and the impact they might have on the university. They warned that the biology department would not cooperate with the physics and astronomy department in building an "outreach science team" if the department hired one of "these types of individuals."

According to the complaint, the physics and astronomy chairman asked Gaskell about his religious beliefs and said that "expression of them would be a matter of concern" to the dean. Days before the search committee recommended someone else for the position, its chairman sent an email with the subject line "The Gaskell Affair."

"It has become clear to me that there is virtually no way Gaskell will be offered the job despite his qualifications that stand above those of any other applicant," wrote Professor Thomas Troland. "Other reasons will be given for this choice when we meet Tuesday. In the end, however, the real reason why we will not offer him the job is because of his religious beliefs in matters that are unrelated to astronomy or to any of the duties specified for this position. (For example, the job does not involve outreach in biology.) ... If Martin were not so superbly qualified, so breathtakingly above the other applicants in background and experience, then our decision would be much simpler."

This past January, weeks before Gaskell's lawsuit was to be tried, the case was settled. The result wasn't surprising: The university would have faced an uphill battle trying to convince a jury that it had passed over Gaskell out of fear that he might violate university policy by linking its website to his personal website, as he had at UNL. Likewise, it would've been tough arguing that although Gaskell's religious beliefs had nothing to do with the decision, his public comments questioning the scientific validity of the theory of evolution would have impaired his ability to serve as the observatory director.

Some key lessons can be learned from Gaskell. For one, human resources training on hiring and managing employees should include warnings about how information taken from Internet searches can lead to allegations of employment discrimination. For another, any Internet searches on job applicants or employees should be conducted by staff members who are not involved in making employment decisions. That way, they can filter out information related to protected factors before the search results are forwarded to the company officials who are in charge of those decisions.

Michelle Sherman is special counsel in the Los Angeles office of Sheppard Mullin Richter & Hampton, where she practices business litigation, consults on social media and Internet compliance issues and edits the Social Media Law Update blog. <.i

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