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article imageOp-Ed: Do employment laws matter in the era of Facebook?

By Leigh Goessl     Mar 14, 2012 in Business
In the United States, there are laws that clearly outline questions that employers are not supposed to ask job applicants during the hiring process.
While many employers find alternative ways to phrase certain questions, there are definite questions candidates do not legally have to answer if asked.
Now that society has become fully immersed in digitization, it seems there is perhaps some gray area in this area because it is not illegal for employers to ask for access to see social media accounts.
Questions that are illegal to ask prospective employees are queries related to race, color, creed, sex, national origin or birthplace; this was established under Title VII of the Civil Rights Act of 1964.
According to these laws, and others various federal, state and local laws, designed to protect against discrimination, employers should limit their line of questioning to queries that relate to the job itself.
For instance, some examples of illegal questions are "How old are you?", "Are you married?", "How many children do you have?", "Are you pregnant or plan to become pregnant?", "How do you plan to deal with daycare?", "What are your sexual preferences?", "What is your native tongue?" and "What religious holidays do you observe?" are a handful of questions that would be applicable under Title VII.
That being said, it is interesting that many of the very questions that cannot be outright asked during a job interview can easily be obtained through Facebook or other social media areas that likely possess the information pertaining to these questions.
Consider accounts, such as Facebook, often contain birthdays, family photo albums and relationship statuses. It may show an announcement of a pregnancy or talk of family preparations for a religious holiday, to name a few examples.
All of which could fall under the category of an illegal question if the information were to be asked directly by an employer.
It is coming to light that employers (and schools) are asking applicants (or students) to see their social media accounts, which are not necessarily designated for public viewing online. One practice, called 'shoulder surfing' entails applicants opening up their Facebook account while an interviewer scans what's behind a privacy wall, like the State of Maryland's Dept. of Corrections reportedly routinely does. This department had previously been asking for passwords, but the ACLU stepped in on this practice.
Currently, there is no legal protection for individuals where social media accounts are concerned. Of course, candidates can refuse to comply, however may feel pressured to open up their accounts or else forfeit the opportunity to be hired for the job.
Will there be a need for passwords or privacy settings in the future? Unless this gray area is addressed, employers may continue to take advantage of the fact they 'can' ask/demand applicants to show their digital selves, even if not publicly displayed.
Granted, employers can legally conduct search engine queries to find information, and individuals should be conscious of this, however those who use privacy settings do so with the expectation of it being shared with selected individuals chosen by said individual.
However, what purpose do those settings and passwords serve if 'shoulder surfing' is allowed? While some questions are illegal to ask, since employers can theoretically obtain the same information by requesting and/or demanding access to social media accounts, it bears consideration of what the effectiveness, of Title VII and other laws, are in the Facebook era?
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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