Social Media and

Discrimination

Created by:

Annie Weatherby-Flowers

Melissa Gombar

September 2012

Equal Opportunities Division

• Charged with the mission of

enabling individuals to live

and work free of

discrimination.

• Responsible for the remedy

of discrimination complaints

brought by individuals.

• Provides community

education and technical

assistance so people know

and understand their rights

and responsibilities.

http://www.youtube.com/watch?v=mgp7GwHxV14&noredirect=1

http://www.youtube.com/watch?v=H61WvxOm1AM

The World of Social Media in 2011

All The Statistics, Facts and Figures

SOCIAL MEDIA

What is social media?

http://3.bp.blogspot.com

http://www.cpccci.com/social-media-development-miami.php

What do you use?

http://www.google.com/search?um=1&hl=en&biw=1280&bih=845&tbm=isch&btnG=Search&oq=social+media+&aq=f&aqi=g10&gs_upl=24554l24554l0l28

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Who has access to the information posted?

http://4.mshcdn.com/wp-content/uploads/2012/03/Social-Media-Demographics-972.jpg

http://4.mshcdn.com/wp-content/uploads/2012/03/Social-Media-Demographics-972.jpg

http://4.mshcdn.com/wp-content/uploads/2012/03/Social-Media-Demographics-972.jpg

Statistics

• Craiglist.com is the leading classifieds service with a

reported 49.5 million visitors each month.

• 2008 CareerBuilder.com Survey

– 3,169 hiring managers

– 22% screen job seekers using social media sites.

• 34% used information in a decision not to hire

• 24% used information to confirm a decision to hire.

DISCRIMINATION

Social Media & Discrimination

• What information is readily available through the

various forms of social media?

• What kinds of issues could this create for a:

– Job applicant

– Employer

– Housing applicant

– Housing provider

– Business owner

Protected Classes

Age

Arrest Record (Not Housing)

Citizenship Status

Color

Conviction Record (Not Housing)

Credit History (Employment Only)

Disability/Handicap

Domestic Partnership

Family Status

Gender Identity

Genetic Identity (Employment and Housing Only)

Less Than Honorable

Discharge

Marital Status

Protected Classes

National Origin

Physical Appearance

Political Beliefs

Race

Religion

Retaliation

Sex

Sexual Orientation

Social Security Number (Not Housing)

Source of Income (Not Housing)

Student Status

Victim of Domestic

Abuse, Sexual Assault, or

Stalking (Housing Only)

Discrimination

• Unfair or unfavorable treatment based on protected class.

• Denial of a reasonable accommodation.

• Harassment – repeated unwelcome or uninvited

comments or behaviors.

• Retaliation – actions taken against individual because

they complained about or help with an investigation

regarding discrimination.

Discrimination

Do you have kids? Do you plan to?

Are you married?

What health problems run in your family?

Where were you born?

What is your religion? Do you attend church?

GINA

• A covered entity may not request, require, or purchase

genetic information of an individual

• “Request” includes conducting an Internet search on an

individual in a way that is likely to result in a covered

entity obtaining genetic information

• Exception: unwittingly receiving genetic information

– Includes information from a social media platform the

employer/supervisor was given permission to access by the

creator of the profile

CASE EXAMPLES

Case Example

John tweets that his older brother is being treated for

Huntington’s disease. His manager follows John’s twitter

account and notices the genetic information.

A week later John is fired because the manager fears John

will soon begin to show symptoms.

Case Example

Amy applied for a job as a Project Manager. After two

interviews she was the top candidate and was offered the

job. When checking her references the hiring manager

Googled her name and found her Facebook profile, where

he learned that she was active in the “Lesbians for Change”

political movement. As a result of the information he

found, he did not offer her the position.

Case Example

Miguel and his co-workers all follow each other on

Twitter, including the foreman. Miguel finds out that he

might be earning less per hour and feels that it may be

because of his national origin. He tweets about the

situation. Several co-workers confirm the salary difference

and all claim that it is “unfair.” Two days later, the foreman

calls him and the co-workers into his office and suspends

them for three days without pay.

Case Example

Robert really likes his co-worker Tammy and asks

her out on a few occasions. She always says no.

Robert decides to post information on his personal

blog about Tammy. Co-workers begin to ask her

when she is going to go out with Robert. She

complains to her employer. What should her

employer do?

Case Example

Sally invites all of her co-workers to her baby

shower and posts the photos from the event on her

Facebook page. She “friends” all of the co-workers

that were in attendance so they can see the pictures.

Also on her Facebook page are racist jokes,

comments, and cartoons. A co-worker complains

about the material on Sally’s Facebook page. What

should the employer do?

Other areas

• The Fair Credit Reporting Act

– Spokeo case – June 2012

• National Labor Relations Act

– Costco case – September 2012

• Computer Fraud and Abuse Act

• Stored Communications Act

Case Example

“Cisco just offered me a job! Now I have to weigh

the utility of a fatty paycheck against the daily

commute to San Jose and hating the work.”

“Who is the hiring manager? I’m sure they would

love to know that you will hate the work. We here

at Cisco are versed in the web.”

The job offer was rescinded.

CA Labor & Employment Bulletin, p. 91March/April 2010

Case Example

Konop v. Hawaiian Airlines, Inc., 302 F.2d 868 (9th Cir.

2002), holding that employee’s private website, which

included critical posts about employer, was protected from

access by unauthorized users under the Stored

Communications Act. The protection applied even though

officer who access the website was given the necessary

password from an employee.

Case Example

Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J.

2010)

– Stengart emailed her lawyer through her personal email, but

using her employer’s laptop.

– Employer had a policy allowing it the right to review all matters

transmitted on its media systems.

– Held: Communication was privileged, and defense counsel had

violated the privilege by accessing personal email cached on

company-issued laptop.

Case Example

What about these examples?

• Text: “OMG u look gr8 in ur jeans!”

• Posting: This girl at work, “she better keep my name out

of her mouth, if she knows what is good for her”!

• Tweet: “Do not work at Mad Spirits, its Wack! Plus the

owner is sleeping with the waitresses”!

BEST PRACTICES

Individuals

1. Posts are not private – they are public!

2. Limit what you post on social media – think

before you click

3. Know the company’s policies on social media

use.

Businesses

1. Have a social media policy in place

2. Clearly communicate social media policy

3. Be aware of potential disparate impact

implications in social media use

4. Be consistent

Social Media Policies

1. Start with current policies – harassment/internet

2. Specifically tailored to company culture

3. Address social media use on and off company time

4. Be specific and provide examples

5. Incorporate “virtual” harassment

6. Respect employee rights under local, state, and federal

laws

• Madison Equal Opportunities Division

– 608.266.4910

– www.cityofmadison.com/dcr

• Wisconsin Equal Rights Division

– 608.266.6860 and www.dwd.state.wi.us

• Equal Employment Opportunities Commission

1-800.669.4000 and www.eeoc.gov

• National Labor Relations Board

1866.667.6572 and http://www.nlrb.gov/

• Questions and Evaluations.

Thank you!