Social media provide a wealth of information about job applicants. LinkedIn has 225 million registered users, of whom the fastest growing demographic is students and recent grads, by LinkedIn's count. This bounty of background information now at the fingertips of recruiters, human resources departments, hiring managers and executives abounds with pitfalls and traps. In December 2012, the Equal Employment Opportunity Commission announced as a national priority eliminating barriers in recruiting and hiring. This priority, coupled with the EEOC and employee groups using fictitious applicants to reveal discriminatory hiring practices, underscores how it has become increasingly important for employers to discuss how to handle social-media checks during employment decisions.
As a threshold matter, there are no known appellate legal precedents addressing discrimination claims solely predicated on hiring decisions influenced by information obtained from social media. Recently, there have been trial-level cases in which social-media recruiting tools and/or website recruiting efforts were pointed to as evidence of discrimination. There is a substantial amount of litigation over whether subjective hiring practices are discriminatory under disparate-impact or disparate-treatment theories.
