Volume 85, No. 1, Fall 2012

Better Safe Than Subjective: The Problematic Intersection of Prehire Social Networking Checks and Title VII Employment Discrimination

It takes less than a minute. An employer receives a resume and types the applicant’s name into an Internet search engine. Assuming that applicant is among the two-thirds of the world’s Internet population visiting sites like Facebook, Myspace, Twitter, and LinkedIn, the employer is directed to the applicant’s social networking profile.

Instantly, the employer obviates Title VII mandates prohibiting employers from inquiring about an applicant’s gender, race, national origin, and religion. The social networking profile provides the employer with various fields of personal information the applicant has opted to share, such as gender, age, religious affiliation, political preference, marital status, familial status, sexual orientation, education, interests, and activities. The photo- and video-sharing capabilities of these sites may additionally provide the employer with insight as to the applicant’s race, disability status, and lifestyle choices.

This scenario is increasingly common—employers now routinely utilize social networking sites in order to research, reject, and decide to hire candidates. One survey indicates that forty-five percent of employers use social networking sites to research job candidates, and of this group, thirty five percent of employers rejected potential job candidates because of content they found on social networking profiles.

This Comment contends that employers who choose to engage in this seemingly innocuous practice may in fact face legal repercussions when defending against Title VII suits. Paying special attention to the intersection of prehire social networking checks, Title VII employment discrimination law, and the developing concept of implicit bias, this Comment predicts the ways that plaintiffs may use prehire social networking checks as evidence in intentional and unintentional discrimination claims. It further pinpoints problematic employer practices and outlines strategies that employers can use to rectify these problems, minimize the influence of implicit bias, and avoid litigation. This Comment also suggests that the practice of prehire social networking checks is ripe for legislative regulation.

Part II.A explains the standing legal authority regarding prehire social networking checks, Part II.B explores the components of and empirical support for the concept of implicit bias, and Part II.C evaluates the ways in which implicit bias has been recognized and integrated into Title VII jurisprudence. Part II.D then considers the courts’ receipt of past social science evidence as a precursor to the fate of future implicit bias cases.

Section III analyzes the role prehire social networking checks may play in both intentional discrimination and unintentional discrimination suits. Part III.A examines the expanded latitude an employer will have to mask pretext in the context of an intentional discrimination claim after this employer has engaged in a prehire social networking check, and Part III.B focuses on employer’s loss of the ignorance defense and increased liability due to a prehire social networking check. Part III.C next predicts the way in which courts will characterize the act of checking a social networking profile with respect to discriminatory intent.

Part III.D turns to the context of an unintentional discrimination suit. This section argues that a prehire social networking check increases the risk that implicit bias will influence an employer’s hiring decision—it informs the employer as to the applicant’s protected trait and heightens the degree of subjectivity with which the employer evaluates the applicant’s candidacy. Part III.E then predicts the courts’ treatment of an unintentional discrimination suit using a prehire social networking check as circumstantial evidence. Finally, Part III.F advises employers as to how they can minimize the level of subjectivity exercised in the evaluation of an applicant’s social networking profile, mitigate the influence of implicit bias, and in turn decrease the risk of litigation, and Part III.G suggests the need for legislative action.