Understanding Protected Classes & Social Media Screening

Why Running Your Own Social Media Background Checks Could Violate EEOC Laws

If you follow our blog, you know we're big fans of running compliant social media background checks as part of your pre-employment screening process. 

The key word, of course, is "compliant."

Why do we always stress compliance? Because too often we hear well-intentioned hiring managers say, "Oh, I googled several of the job applicants myself and checked out their Twitter feeds and Facebook pages." 

This is a BIG no-no, especially if you're an equal-opportunity employer. 

The following will explain exactly why this is the case. We'll touch on  . . .

●    The Equal Employment Opportunity Act
●    Protected classes—what it means, who's included
●    Why social media background checks still make sense
●    The problem with hiring managers performing these checks on their own
●    How a compliant social media check works

What is the Equal Employment Opportunity Act? 

Tulane University Law School offers a succinct history. In a nutshell, as part of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) was created to investigate claims of employment discrimination. In 1972, the Equal Employment Opportunity Act came into being and further expanded the EEOC's powers, which have continued to evolve over the years. 

Bottom line: It's against federal law to discriminate against job applicants and employees who are members of certain protected classes. 

What are these protected classes?

The EEOC website says protected classes include "a person's race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information."

Some states, like California, have further expounded on the definition of protected classes. For example, California also considers military or veteran status a protected class as well as a person's request for family care leave. 

Do all employers need to follow EEOC laws?

It's complicated. As the EEOC website explains, "Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits."

But Tulane University Law School notes that exceptions exist, meaning certain organizations aren't required to follow EEOC guidelines: "For example, religious organizations are exempt because hiring people from other religions could be at odds with their mission."

And don't forget, as noted above, states can further expound on the definition of protected classes, which means if your organization operates in one of those states, you need to consider the state's laws as well.

What do EEOC laws have to do with social media screening?

The best way for us to explain is through an example. 

Let's say you're the hiring manager for a 50-person company. You post a job listing and receive dozens of resumes. You whittle down the resumes to a reasonable number and you begin to conduct interviews. You decide to "do a little googling" where you check out some of the candidates' social media platforms. Based on what you find, you decide to dismiss some candidates in favor of others.

The problem with this approach is that you will stumble across protected class information—and once you see it, you can't "unsee" it. You can't un-ring the bell, as lawyers and judges like to say.

Here's the thing: Seeing this info alone isn't the main problem. It's what you do with the info, and how you act on it, that causes a legal conundrum. 

For example, if the applicant posts a photo on Facebook showing off their baby bump, does that influence your decision about hiring them? What about their tweet that mentions the upcoming Jewish holidays they're looking forward to celebrating? What if they post a pic of their 58th birthday and they mention looking forward to retirement in a few years?

The EEOC says in this press release that "the improper use of information obtained from such sites may be discriminatory since most individuals' race, gender, general age and possibly ethnicity can be discerned from information on these sites."

The release goes on to say, "To the extent that employers conduct a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and only use publicly available information, not requesting passwords for social media accounts."

Remember, even if the protected class information doesn't influence your decision, the applicant could make the argument that they were discriminated against, which could cause legal headaches and brand damage. 

By the way, it’s not just EEOC laws that you have to worry about. You must also comply with the Fair Credit Reporting Act (FCRA) and state privacy laws.

Does protected class information only apply to job applicants?

Nope. If a person is a member of a protected class, they can't be discriminated against period—whether they’re a job applicant or an employee.

So if your company also monitors employees’ social media activity, you must still comply with EEOC as well as other pertinent laws. 

Why bother running social media background checks or monitoring in the first place?

Other common background checks, like criminal record checks and education/employment verifications, review history and facts. 

But social media screenings help fill in the blanks about a person's character. 

After all, how a person presents themselves online can be quite telling. Do they use inappropriate language? Share racist memes? Threaten people? 

A thorough social media screening can look for these problematic behaviors—behaviors that could create huge liabilities for your organization. 

So running these screens as part of your pre-employment background check process makes a whole lot of sense—provided you run compliant checks. 

How does compliant social media screening work?

Compliant social media screening involves outsourcing to a reputable third-party vendor with expertise in conducting these sorts of background checks. 

A compliant social media screening will . . .

✔    Provide relevant authorizations/disclosures and gets explicit permission from the candidate/employee 
✔    Use artificial intelligence (AI) to conduct a thorough and fast review of the candidate's online activity
✔    Focus only on business-related information and redact protected class information when presenting results
✔    Not use any sort of hacking, scraping, or otherwise illegal or unethical ways to gain access to social accounts
✔    Make a good-faith effort, as dictated by law, to ensure the correct person is being reviewed 

Typically, compliant social media background checks will flag problematic behaviors that could be a liability to your company and/or put your workplace at risk. Think things like . . .
●    Drug-Related Images
●    Explicit/Racy Images
●    Hate speech
●    Insults and bullying
●    Narcotics
●    Obscene language
●    Self-harm
●    Threat of Violence
●    Toxic Language
●    Violent Images 

Where can I find a vendor who offers compliant social media screening?

You're in the right place already! Good Egg offers fast, secure, and compliant social media screening and monitoring. You get the business insights you need to make better hiring decisions and none of the legal headaches. Request a demo and let's talk.


New call-to-action

Mariah Barr

Posted by Mariah Barr

Mariah Barr is the Content Marketing Writer at Good Egg. She's played a few roles in her professional life, but they’ve always involved writing interesting and informative pieces. Outside of work you can find her walking her dog or working on a DIY home improvement project.

Download eBook Now! How to Choose the Right Background Check Vendor