Who is Protected From Employment Discrimination?

According to the EEOC: Applicants, employees and former employees are protected from employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history).

Applicants, employees and former employees are also protected from retaliation (punishment) for filing a charge or complaint of discrimination, participating in a discrimination investigation or lawsuit, or opposing discrimination (for example, threatening to file a charge or complaint of discrimination).

The EEOC & Types of Discrimination

According to the Equal Employment Opportunity Commission (EEOC), discriminatory practices include:

● Harassment on the basis for any of these protected classes.

● Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices

● Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain protected class.

● Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.

● Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

Social Media & Employment Discrimination

Social media makes access to employee or candidate protected information available to most anyone.  Prior to social media, companies could restrict access to protected information through locked files, sealed medical information, and restricted access to online and paperless HRIS systems. Now we can visit Facebook, Instagram and LinkedIn accounts, view videos on YouTube, follow a Twitter feed and even access personal photos. For human resource leaders and employment law attorneys, social media is a scary, scary place.

The key is to provide training, resources, and information to those in decision making roles who may seek out information using social networks posing a liability to their employer.  By educating your managers on the risk and employment law perils of social media can help mitigate the risk.

And still, social media is not going anywhere.  Nearly 600 million Facebook users can’t be wrong.

Evaluating Employee Discrimination & Social Media

When evaluating social media, discrimination, and the potential liabilities, it’s important to evaluate these areas:

The Office of Federal Contract Compliance Programs (OFCCP). If you are a government contractor, an Affirmative Action Plan is required. Candidates must be accounted for social media included.  Logs must be created and maintained.

The EEOC. Social media comes in all shapes, forms, and sizes.  Consider how, why, when, where, and if an employment decision was made using social media.  Is there a standard procedure in place for sourcing or recruiting candidates?  Are you consistent with that procedure?

The National Relations Board (NLRB). What exactly is a concerted protected activity? Union or not, your company should be training your managers on when HR should be involved in disciplinary action that involves social media and sites like Facebook.

Text messages as electronic documents. In 2010 the Supreme Court ruled (Ontario v. Quon) that text messages are a form of electronic document similar to an email.  If your company has corporate issued phones that allow for text messaging, companies will be required to store and catalog these messages just like an email.

Is social media discrimination and the other potential pitfalls an area of concern for your organization?  If so, what’s your plan?