Over the weekend, a story broke involving a Texas company Kickass Masterminds and one of their internship applicants. The Austin-based marketing firm Kickass Masterminds posted a bikini photo of intern applicant, Emily Clow as an example of unprofessionalism and how “not to apply for a job.” The firm had apparently found the bikini photo after perusing Ms. Clow’s Instagram feed and after requesting social media handles on their job application. Naturally, this stoked internet rage, and controversy ensued.
Bikini-shaming aside, the ethics of asking for a candidate’s social media are already murky. As an employer, asking for social media handles or URLs on a job application might seem relevant if you’re in a creative field, especially if you’re interviewing candidates who use their social media as a type of portfolio or proof-of-persona. Unfortunately, the truth is that asking for social media handles during the hiring process under the Fair Credit Reporting Act can be, in certain respects, illegal.
Why is it illegal?
In 2011, the Federal Trade Commission issued an opinion letter that social media background screenings should be regulated by FCRA, just as any other background check. Social media is a particularly privacy-sensitive arena. Screening a candidate’s social media means an employer is gaining access to sensitive, protected class information such as sexual orientation, religion, marital status, nationality, racial identity, etc. This type of background information has the potential to skew an employer’s bias and ultimately open them up to Title IX discrimination claims.
What should have happened?
It goes without saying that the marketing firm should never have publicly shamed anyone for their social media posts–especially because in this case, the candidate in question is a woman. This could make them liable to Title IX discrimination claims because of their implicit comments about a woman’s body/behavior that may have never occured if they had posted about a man’s. Additionally, the marketing firm should have never asked for their candidates’ social media handles if their intention was to screen for unacceptable or toxic behavior. In this case, Kickass Masterminds should have provided a disclosure and authorization form of intent to perform a background investigation as well as a Summary of Rights.
How can employers do better?
Employers–especially those hiring public personalities or creative contractors–should have a social media policy that makes sense for their industry. Folded into a social media policy should be some sort of section that gives employees notice that they may be screened before they’re hired and on occasion thereafter–if that’s what you’re planning. Additionally, employers should have a clear HR protocol laying out who is responsible for screening and how exactly it should be conducted. Will your HR Generalist be responsible, or will you outsource screening to a third-party social screening firm?
Ultimately, utilizing an unbiased third party for social media screening provides an avenue for companies to create a better workplace culture and drive diversity and inclusion initiatives. Further, candidates should know their rights while also being aware of some easy methods to groom their profiles for a positive and professional online presence.