1. Do employers discriminate against candidates during
the hiring process base on an observation on their social
media profile/s?
December 2009
Researched and written by Aylin Ahmet
The Internet has opened up a whole new way of networking for candidates but has it given
employers another opening to indirectly discriminate against candidates during the hiring
process?
This research paper will investigate how social media tools like Facebook, Twitter and
LinkedIn are being used to search on candidates and discuss the invasion of privacy using
this information to discriminate against candidates during the hiring process. Social networks
are not just for socialising anymore, they are now being used as a job search and research
tool for recruiters and employers. The research paper will uncover concerns with accessing
potential employees social profile information without permission and using this to assess their
suitability for a position with the organisation.
Over the past 20 years the recruitment environment has evolved significantly; from an era of
newspaper advertising and hard copy resumes to a recruiting environment enabled by
technology and the internet with social networks capturing the attention of millions globally.
Recruiting has always been about networking and the more people you know, the easier it
becomes to hire – the internet is now the enabler, connecting people on a social and
professional level. Job seekers are realising the usefulness of these sites to find jobs, keep
abreast of career opportunities and research possible employers. On the flipside, employers
can just as easily research candidates through their online social networking sites. There are
literally thousands of recruiters searching for passive talent on social networking sites – those
who are employed and not actively seeking a new position – as well as job seekers who are
leveraging off these networks to find available positions (Schawbel, 2009).
Since social networking websites, such as Facebook and Twitter began it has allowed
organisations to create profiles, become active members and start to incorporate these
strategies into their public relations programmes (Watersa et all, 2008). More broadly,
employers are using these networking sites to reach a large demographic audience for
wider business reasons such as employment branding, help launch products, communicate
with customers and increase sales.

2. If potential employers are examining a candidate’s online social networking profile/s as
research suggests they are, would they consider that information during the hiring process?
What if a potential employer saw a picture of a woman or a man consuming alcohol? Or if
they saw a picture of a female applicant who happened to be pregnant? What about a
candidate using discriminatory/racist language on their profile page? Will this information
negatively influence their opinion of the candidate?
Social networks are online communities that link members based on mutual interests.
Members often create a personalised profile, and connect with others via discussion and
special interest groups. The term social media referring to blogs and social network sites
online have been steering a change allowing worldwide, networked communication
instantaneously (Wikipedia, 2009). Such media describes the online practices that utilise
technology and enable people to share content, opinions, experiences, insights, and media
themselves. Any contribution an individual has made on an online profile can lead to a
prospective employer locating that information and using it when assessing suitability for an
applied position.
The huge number of social networking users makes these sites extremely attractive to
recruiters as possible sources of hire and to hiring managers who want to learn more about
potential hires. The issue arises when a prospective employer can search on candidates and
potentially discriminate based on an observation, such as a profile image of a same sex
couple, a pregnant women or a young family with children.
In a social recruitment survey conducted by online recruiter Jobvite, 68% of 115 small- and
medium-sized businesses use social networking to support recruitment efforts (Jobvite, 2009).
Statistics are indicating that more organisations and recruiters are researching candidates on
their social online profiles. A study conducted by CareerBuilder surveying 3,169 hiring
managers found that 22% screened job seekers using social networking sites (CareerBuilder,
2009).
For the purpose of the research paper, the social networking sites that will be referred to are
Facebook, Twitter and LinkedIn. Facebook is a social networking site, allowing members to
create a profile the focuses on more personal matters such as family, celebrations, events
and hobbies. Twitter is a free micro-blogging tools that allows users to send short messages
out to their followers answering the Twitter question of “What are you doing?”. LinkedIn is a
professional networking tool that allows you to connect with other professionals around the
world.
Members use Facebook to communicate with friends and share personal information about
their lives with over 350+ million active users globally registered on Facebook (Graves, 2009).
Facebook is the largest social networking tool and is home to both corporate recruiters and
head-hunters, who tend to use it more for background checks than for recruiting, according
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3. to (Schawbel, 2009). In fact, Careerbuilder research found that one in five recruiters uses
Facebook for candidate background checks. According to a Facebook Demographics
Statistics Report, the number of Facebook users ages 35 to 54 grew by 276% in the last six
months of 2008 (iStrategyLabs, 2009).
Twitter is a more recent addition to the social networking phenomenon and emerged
through the tragic event of the plane crash of U.S. Airways flight into the Hudson River earlier
this year with the breaking news released from a Twitter message of a passenger onboard
(Tsoulis-Reay 2009). Twitter members can post links to articles, pictures or videos of topics of
interest. LinkedIn however targets professionals and allows members to create a profile that
describes their professional background facilitating connection and communication with
other professionals. If an employer must review job seeker information on social networks,
LinkedIn may be a slightly safer choice as it’s designed as a professional social networking
site. Its purpose and content is oriented toward professional, job-related information and
contains minimal personal information (Berkshire J, 2005). Social networking sites extend
beyond Generation Y usage, currently, more than 26 million users (average age: 41), and
more than 600,000 small business owners are logged on to LinkedIn alone (Peopleclick
Research Institute, 2009).
Tredinnick (2006) defines social networking sites as those sites driven by “user-participation
and user-generated content”. Having an online social media presence doesn’t necessarily
mean it will be harmful to the individual if a prospective employer was to search on their
profile site. Results from the CareerBuilder survey found that out of the 3,169 hiring managers
surveyed, that 24% have used the information to confirm their decision to hire a candidate
(CareerBuilder, 2009). Generally, a candidate’s contribution through these online mediums
can show an individuals understanding, intellect and outlook which can be advantageous in
their job application. Social media applications provide a variety of ways for users to
become involved with organisations. Recruiters can gain a better understanding of an
individual based on a blog they may write, compared to a resume that has the same
standard fields, such as experience and education (Schawbel, 2009). With one click, hiring
managers can identify a job applicant's voice and thoughts as well as how he or she may fit
into an organisation's culture and the specific role that needs to be filled. By using these
social networking sites a candidate has many outlets to build on their personal brand and
potentially find a job faster than other candidates in the market.
Generally, during a standard hiring process, recruiters/employers refer to a candidate’s
resume, interview, background, reference checks and other relevant behavioural/technical
tests to determine a candidate’s skill set and suitability for a new position. This hasn’t
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4. changed. However, as the process of recruiting is evolving with the introduction of social
recruiting referring to an employer “using social media as part of their recruitment strategy”
(Inspecht, 2009); employers now have access to many online tools with the ability to search
on a candidate’s online profiles publicly. A recent survey by Jobvite reflects this evolution in
recruitment, noting that 72% of companies plan to invest more in recruiting through social
networks (Jobvite, 2009). Of those surveyed who plan to invest more into social media
recruiting, LinkedIn is the most popular networking tool (95 percent), followed by Facebook
(59 percent) and Twitter (42 percent) (HR Wire, 2009). The percentage of employers using
Facebook rose by almost two-thirds between 2008 and 2009. Through a candidate social
media site a recruiter may make a decision to terminate a candidate’s progression in the
hiring process, research indicates that 34% of hiring managers from the CareerBuilder study
have used what they learned on these social networking sites to reject a candidate
(CareerBuilder, 2009).
With a down turned economy, high unemployment and thousands of baby boomers retiring,
the labour market is undoubtedly going to change and organisations have to adapt to
ensure they continue to find the best talent in the market. The job function of a recruiter is
changing, Kathy Taylor; a recruiter based in the US exclaims “instead of taking 90 days to find
people, with LinkedIn you can almost cut that in half” and that “my searches now will run 35
to 50 days on average because I can search by keywords of a certain skill set I am looking
for." (Hutson, 2008).
When an individual becomes a member of a social networking site, a social profile is
created. You may enter very little information or a lot of information about yourself and this
tends to vary from person to person. For example, Facebook provides an information page
where you can enter various details of your personal life, the questions look like a direct list of
questions that should be avoided during the hiring process. Gender, birth date, family
members, relationship status, sexual orientation and religious views are all available profile
fields. Users may restrict this and other information on their profiles to selected friends or may
leave it accessible to a wide audience. The usefulness of social networking site profiles often
focuses on the information that is being distributed (Crespo, 2007).
The benefits for the employer are clear and have led employers to find the best talent in the
market by researching prospects through their social online profiles, especially hard-to-fill
positions. If more employers start using social networks to make decisions about potential job
seekers and potential hires, a whole host of employment-related legal issues would arise. This
novelty and excitement around Facebook, Twitter and LinkedIn has, in many cases,
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5. overshadowed the fact that the use of these sites for recruiting and hiring carries with it many
legal obligations. Anti-discrimination regulations “prohibit employers from asking job seekers
information that would disclose their protected-class status–that is, religion, age or disability”
(Rees et al, 2008).
Using social networks as a source of information about applicants could cause an
prospective employer to discriminate intentionally, or unintentionally, based on protected-
class status such as race, gender, religion and so on, or on the basis of one’s leisure activities
if they do not agree with your own or with your organisational culture (Peopleclick Research
Institute, 2009).
The type of information employers typically observe on a candidates social media profile,
according to a CareerBuilder study (CareerBuilder, 2009) are; lies about qualifications,
revealed links to criminal behaviour, posted information about alcoholism or using drugs,
posted provocative or inappropriate photographs or information, bad-mouthed comments
of previous employers or co-workers, discriminatory remarks related to race, gender, religion,
etc.
Under the Equal Opportunity Act 1995 (Vic), it is against the law to discriminate against
someone because of their age, physical features, marital status, pregnancy, race, sexual
orientation to name a few (Victorian Equal Opportunity & Human Rights Commission, 2009).
In one of the most influential employment discrimination cases in the US, Griggs vs. Duke
Power (1971) recognised two legal theories of employment discrimination, disparate
treatment and disparate impact (Findlaw, 2009). Disparate treatment involves intentionally
treating members of a protected class differently than others. For example, asking only
females about their family during an employment interview and then rejecting females with
children would be an example of disparate treatment. To avoid disparate treatment claims,
it is important that everyone go through the exact same hiring process, the same steps and
the same criteria for selection. If recruiters or hiring managers only check Facebook or
LinkedIn for some applicants or evaluate information found on these sites in a different way
for different applicants, the employer could be vulnerable to claims of disparate treatment.
In this case Duke Power required applicants to have a high school diploma and pass a
broad aptitude test. Minorities failed these requirements at a significantly higher rate than
non-minorities. Since Duke Power could not justify the high school degree and aptitude
requirements for certain lower level jobs, the court found that they had discriminated against
minorities. The employer may be able to justify the use of the procedure as job-related and
consistent with business necessity, and there may be no other alternative selection
procedures that are equally valid with less adverse impact (Findlaw, 2009).
Using social networks as the only source of candidates can be seen as discriminating against
potential applicants that do not have social networking profiles. Employment lawyer Jacquie
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6. Seemann with Thomson Playford Culters, claims that in certain circumstances employers
might be indirectly discriminating against groups of candidates by not treating all
candidates in the hiring process equally (Shortlist 2009). Organisations can conduct detailed
searches or perform a general search of Facebook or LinkedIn members which will return
people and groups associated with the search terms. Recruiters can then join these groups
or ask individuals to be added as a friend for further access to their profile information.
Recruiters can also invite candidates to a Facebook event (for example, a career fair or
networking event) or suggest they become a fan of the company page to learn more about
their organisation. Even more delicately, if a profile site does not have settings activated, an
employer is able to view photos, videos, comments and personal information from their
profile site without the candidate being aware of the recruiter’s visit to their profile.
“Indirect discrimination occurs where one person appears to be treated just as another is or
would be treated but the impact of such `equal' treatment is that the former is in fact
treated less favourably than the latter.” (VCAT, 2000)
“Any information not directly related to the candidate’s ability to work in the specific role for
the specific company would be seriously under question” (Shortlist, 2009), which questions
the relevance that a candidates social networking profile has. The Fair Work Act includes “a
new set of ‘general protections’ against other forms of discriminatory or wrongful treatment
at work” (Fair Work Act, 2009). “If an employer discovered, via a social media site, that a
candidate had made a sexual harassment or unfair dismissal claim against a previous
employer, and decided not to hire the person for that reason, they could be found to have
breached the general protection provisions.” (Shortlist, 2009). Is this an invasion of our
personal privacy or standard business requirement?
“The Privacy Act dictates that companies must only collect a candidate’s personal
information that is necessary for their business,” explains Ms Maynard. Which raises the
question of whether a candidate’s social media profile is relevant to their job application
and suitability for the applied position?
Brett Iredale from JobAdder believes that “recruiters looking at public information made
public by a candidate have every right to do so and that its absolutely legitimate Facebook
and LinkedIn checks are used in conjunction with other candidate credentialing (i.e.
reference checks, resume, interviewing)” (JobAdder, 2009).
Anything we choose to post on the internet on our personal profile sites whether it is photos,
video, documents or presentations, can and will be accessible publicly by anyone viewing it.
By using and accessing Facebook, we agree and are bound to the Facebook terms and
conditions that stipulate that “When using Facebook, a personal profile is set up, relationships
and groups are formed, searches are conducted and information is transmitted through
various channels whilst still collected by Facebook so that more personalised features can be
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7. targeted at the individual” (Facebook, 2009). Facebook privacy also states that “we
[Facebook] cannot control the actions of other Users with whom you may choose to share
your pages and information” (Facebook, 2009). Profiles can be set for viewing to up to the
third level of connections or simply to the first level only, depending on the profile owner's
settings. This means that the individuals profile can be viewed publicly with no strict privacy
security (Recruitment Directory, 2009). By using these social networking sites, already we are
consenting to have our personal data transferred to and processed by the networking site to
third party providers.
In order to retain control over the personal information and over what information recruiters
can view on social networking sites individuals must take ownership over the content and
privacy settings on their social networking sites. If it’s on their social profile and it could
potentially be harmful to future career opportunities then they must take responsibility for the
content they chose to upload or just don’t publicly display it. In the media recently, there
have been a number of examples of how employees in employment have caused damage
to their position within the organisation. An employee posting a malicious comment on her
Facebook profile, forgetting that she befriended her boss earlier (see image 1) or in the
instance of Kyle Doyle who called in sick one day and including a status update on his
Facebook profile outlining that he wasn’t sick but still intoxicated from the previous nights
outing (see image 2).
Image 1: Sourced from (Inspecht, 2009) - Social Media: Friend or Foe in the Workplace
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8. Image 2: Sourced from (Inspecht, 2009) - Social Media: Friend or Foe in the Workplace
The difficulty exists when proving whether an employer made a decision to not proceed with
a job application based on an observation on their networking site. How can a candidate
prove that they have been unfairly treated?
Anti-discrimination legislation has been employed to combat discrimination but does it
necessarily still stop people from it, especially when it can be difficult to prove that an
employer has discriminated against a candidate based on an observation on their social
networking site?
Harmers Senior Associate Bronwyn Maynard says “many employers and recruiters are not
aware of their obligations under the existing Privacy Act let alone the General Protections
section of the Fair Work Act that came into force on July 1, 2009 (CareerOne, 2009).
Under the Privacy Act employers and recruiters must:
- Inform a candidate that they have collected personal information about them.
- Explain the purpose of gathering the information.
- Tell the candidate who else will see the information.
If an employer/recruiter is bound by law to maintain all necessary records and contact
made with a candidate during the hiring process, including records related to their decision
and information related to searches and contacts about a position, can this really be
enforceable?
8

9. Candidates can request to see the notes made and information gathered about them
during a recruitment campaign on the recruitment system and request that inaccurate
information be corrected. Furthermore, if the candidate considers the information irrelevant
he or she can then make a complaint to the Privacy Commissioner (CareerOne, 2009).
Luckily for recruiters and hiring managers, most candidates don’t realise that under privacy
legislation they are entitled to see notes made about them during the recruitment screening
process. Kate Southam from CareerOne stated that a spokesperson from the Office of the
Privacy Commissioner confirmed that “not one complaint has ever been lodged by a job
hunter” (CareerOne, 2009).
Information viewed by an employer on a candidate’s social networking profile needs to be
carefully assessed as to whether it will add value to the hiring decision. Just because the
candidate has a wall post about being drunk at a party, this should not rule them out of the
job unless they are to be a role model and the image does not fit with that undertaking
(SixFigures, 2009). The question remains whether there is enough subjective assessment on a
candidate’s social profile site that is viewed by hirers without making it even easier for them
to discriminate with all this additional information at hand?
Social media searching on candidates is still a fairly new recruitment tool with not much
legislation relating to information collected from a candidate’s social networking site. As the
popularity of these websites increases, and statistics clearly indicate huge growth surges, it is
expected to become a more popular recruiting tool for recruiters/employers. Registration
levels are growing daily, around 65% of university students alone in Australia have a
Facebook account for instance, a statistic which has grown dramatically over the past year
(onrec.com, 2007).
A diligent and savvy recruiter is going to make a judgement call based on an overall
objective assessment of the candidate and not just social network site. People are entitled to
use social networks and to share personal information in a social context without having this
information used out of context. If an employer uses this information to assess a candidate’s
suitability for a position, it may bring the judging and discrimination into the hiring process
without much basis for it. A study by (Flashpoint HR, 2009) urge recruiters to “think about the
nature of your organisation, your reputation in the community, and whether personal
information is relevant to the position. You should also consider employee relations and legal
implications such as the appropriateness and relevance of online searches on candidates.
9

10. If a candidate chooses to make the information on their social networking available to
everyone, it is important to have some discretion in terms of publicly accessed information. If
you're going to make this information available to everyone, it is important to have some
discretion in terms of what you are making public and ultimately your responsibility. Each
individual must take responsibility for the information posted on their profile sites to ensure it is
not to the detriment of their professional reputation.
In conclusion, the research paper has raised a number of questions uncovering ethical and
legal concerns faced by recruiters/employers who source information that is not directly
linked with a candidate’s ability to perform in their role, such as personal information
available on their networking sites. Research is indicating that currently no legislation or
regulations exist to protect job candidates from discrimination of this sort which raises doubt if
a potential employer accesses personal information. This is a growing concern given the
reliance on internet usage in nearly all aspects of people’s daily lives as people utilise social
networks for much more than merely socialising.
10

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