In recent months, several news articles have shed light on an alarming new practice: employers are demanding that job candidates provide their Facebook account login information so they can view their private profile as part of the screening process.  While this practice is not yet widespread among employers, the issue has garnered enough attention to raise the ire of Facebook brass along with several top lawmakers.

Most notably, two U.S. Senators have called for an inquiry by the U.S. Department of Justice into whether this practice violates federal information privacy laws such as the Computer Fraud and Abuse Act, which prohibits intentionally accessing a computer without authorization to obtain information.  These lawmakers have taken the position that the practice is unduly coercive and therefore constitutes unauthorized access.  For its part, Facebook has threatened legal action against employers based on its longstanding privacy policies, and recently released a statement urging that employees should deny the employer’s request for account login information.

Privacy issues aside, employers who use Facebook to “snoop” on prospective employees are clearly exposed to an increased risk of claims under federal and state anti-discrimination laws.  For example, a spurned job candidate might claim he or she was impermissibly denied a job based on his or age, ethnicity, sexual orientation etc., revealed to the employer through the candidate’s profile.

Of course, Facebook snooping is but one instance of how employers can run afoul of antidiscrimination laws during the hiring process.  Even where the employer is acting without discriminatory intent, asking the wrong questions in a job interview could potentially trigger a discrimination lawsuit.  As such, employers must be aware of state and federal antidiscrimination statutes and carefully tailor their interview questions accordingly.  Keep in mind that any interview questions relating to a job candidate’s age, national origin, sex, sexual orientation, marital status, race, religion, citizenship, record of offenses, or health could potentially amount to discrimination.

The following provides a sampling of permissible and impermissible lines of questioning under two federal anti-discrimination statutes:

The Age Discrimination in Employment Act of 1967, as amended (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age.

  • Employers may not ask how old a candidate is.
  • Employer may ask if candidate is 18 years of age or older.
  • Employer may not ask what year a candidate graduated from high school.
  • Employer may ask what year a candidate graduated from an institute of higher education.
  • Employer may not ask “How would you feel about working for someone younger than you?”

The Americans with Disabilities Act of 1990, as amended (ADA) prohibits employers from discriminating against qualified individuals based on disabilities

  • Employers may ask about an applicant’s ability to perform specific job functions.
  • Employers may ask applicants to describe or demonstrate how they would perform job tasks.
  • Employers may not ask candidate to list any conditions or diseases for which they have been treated in the past.
  • Employers may not ask whether the candidate has been treated by a psychologist or psychiatrist.
  • Employers may not ask whether the candidate is taking any prescribed medications.
  • Employers may ask whether the candidate has ever used illegal drugs.
  • Employers may not ask whether the candidate has ever been treated for drug addiction or alcoholism.

Other federal laws to consider include the Title VII of the Civil Rights Act of 1964, as amended, (Title VII) which prohibits employment discrimination based on race, color, religion, sex, or national origin, and the anti-discrimination provisions of the Immigration Reform and Control Act of 1986, as amended (IRCA).

For additional guidance on compliance with antidiscrimination law in the pre-employment screening process, contact the attorneys at MBM.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.