A new realm of discrimination

13 October 2011

Written by: Samantha Afetian

Facebook, LinkedIn, Twitter.  Social media sites are now regularly used as employee recruitment and screening tools by companies. Now, with uni graduations around the corner, the internet is abuzz with job opportunities for soon-to-be graduates scrambling to establish the first chapter of their post-university lives.

By using social media as an employment tool, however, companies and prospective employees may be playing with fire.

Jessica Miller-Merrell, a senior professional in human resources, warns employers that they could stumble into the dangerous territory of discrimination.

‘Depending on how a candidate restricts and controls their privacy on sites like Facebook, a recruiter or manager can learn a great deal of information that shouldn’t be included in their decision to interview or even a hire a potential employee,’ she says on her blog, Blogging4jobs.

‘Companies need to be prepared for a new era of discrimination claims using social media.’

In Australia, the type of discrimination Miller-Merrell refers to in her blog  is called unlawful workplace discrimination. According to the Fair Work Ombudsman of Australia, this occurs when an employer makes a decision based on race, gender, sexual preference, age, marital status, or physical or mental disability.

Because this kind of information is often posted on social media profiles, employers have to take care not to base a decision on ‘irrelevant personal information’, which according to Kate Jenkins, a partner at Freehills lawfirm in Melbourne, can be quite risky.

‘Unsuccessful candidates may claim discrimination where irrelevant personal information is published on a social networking site,’ she says in a Freehills blog post.

‘Similarly, an applicant may have published information about a prior complaint against an employer, their role as a bargaining representative or other ‘workplace right’ attracting protection under the Fair Work Act.’

While job applicants are protected under the Fair Work Act from discrimination on the basis of many personal attributes, Miller-Merrell says that employers can use social media as a way of detecting unprofessionalism and inappropriateness in potential and current employees.

That’s one reason why people should still be weary of the information they choose to share on social media sites, says Rebecca Coates-Nee, an assitant professor of journalism at San Diego State University in California.

‘On the whole, I warn my students about what they post on Facebook or Twitter,’ says Coates-Nee. ‘There really isn’t such a thing as privacy online, so if someone is posting intimate details about themselves, they should be prepared for everyone to find out.’

To date, there have not been any court cases that have set a precedent for the issue of social media discrimination and some companies have acknowledged the dangers of social media screening.

David Wishart, a faculty member of Law and Management at La Trobe University, says the law is still fairly uncertain on how to deal with social media.

‘The law tends to respond to issues, it is not pro-active,’ says Wishart. ‘Twitter and other social medias are still too new for laws. Cases take several years before they reach the courts. I suspect we may be seeing cases dealing with discrimination and social media more in the near future.’

Samantha Afetian is a Journalism student at La Trobe University, currently on exchange from San Diego State University in California, and a member of upstart’s editorial team.  You can follow her on Twitter: @Sam Afetian.