Facebook login demands can place employers at legal risk to non-hired applicants

News of a disturbing trend was brought to the fore this week when it was reported that many potential employers are requiring job applicants to provide them with their Facebook login information as part of the interview process. While not illegal per se, it is, if nothing else, invasive and coercive. For potential employees, not providing the information upon request is surely akin to not getting the job. And, in this bad economy, for many applicants, walking away from a potential job is not an option.
What exactly is the purpose for such a request? One job seeker said the potential employer wanted to check on any “gang affiliations.” That potential employer, the Maryland Dept of Corrections, readily admitted that they routinely ask for Facebook login information to vet potential workers. That practice caught the American Civil Liberties Union’s attention in 2011. As part of the ACLU’s exploration into the practice, the DOC responded by advising that out of 2,689 applicants, they denied employment to seven potential employees specifically because of items found on their Facebook pages.
I’m not so sure I would be quite so matter-of-fact as to admit denying employment to anyone based upon information found in their Facebook profile. Federal law prohibits employers from asking individuals about their race, religion, marital or family status, birthplace, or age as part of a job interview. Yet, most of these answers can easily be discerned from a simple viewing the front page of a person’s Facebook profile. In example, my Facebook profile shows a picture of my son and that I am married. Simply clicking on the “About” link takes the viewer to an area that details my religious and political beliefs, my date of birth, and my hometown. These are all questions federal law prohibits an employer from asking, yet can easily be shown when an employer is allowed to log into a potential applicant’s Facebook profile.
Yesterday, Facebook released a statement on the matter: Releasing such private information compromises not only the integrity of the site’s security but also the privacy of the user and the user’s friends and connections. In short, any employer’s request for such information should be denied.
It may be that employers don’t fully understand that they are opening themselves up to legal troubles by asking potential employees for their Facebook login information. Simply put, to deny an employee a job after reviewing their Facebook profile could give rise to a discrimination lawsuit. It wouldn’t take much to argue that the employer saw on their Facebook profile that they were gay, or Catholic, or over 50, or Hispanic, and that is the real reason they weren’t hired. And that is illegal.
But perhaps that’s the real win for job applicants: A successful lawsuit may well provide them with enough money so they wouldn’t need a job after all.

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