I recently attended one of the regular Breakfast Seminars that my law firm puts on for clients and other interested parties on topics in Labour and Employment law. The presentation by my fellow associates Rebekah Powell and Sarah Drodge addressed the way that social media are presenting new challenges and opportunities for the human resources profession.
One point that particularly caught my interest was the interrelationship between social media, hiring practices and human rights.
It is becoming more and more common to hear of employers “googling” prospective employees. Where a prospective employee has a significant presence on the Internet through social media, the employer may become privy to a number of facts about the prospective employee that he or she may not have known previously.
This raises an interesting question: if an employer discovers information about a prospective employee that falls under a prohibited ground of human rights legislation, will the prospective employer then have difficulty justifying a decision not to hire?
Let’s take an example. Acme Industries wishes to hire George Smith. After conducting the initial interview, at which George did not impress, the HR Manager at Acme “googles” George and finds his Facebook page. George has not activated the privacy settings in Facebook, and the HR Manager finds out that George is a member of a religious group that prohibits him from working at certain times that are key to Acme Industries’ operations. If the HR Manager makes the decision not to hire George on that basis, Acme could be faced with a human rights complaint. So where the HR Manager had originally been thinking that George’s application was not a strong one and was not particularly inclined to award him the position, there may now be liability associated with not offering the position!
Acme has put itself in a very difficult situation. If they chose not to hire George, it will be difficult for them to prove that the decision was based on George’s poor presentation, and not on his religious beliefs, as the employer would have had no knowledge of those beliefs until after George had come to work (presumably). The standard for a finding of discrimination is very low, so it would not be difficult for George to make his case once evidence came to light that the employer was aware of George’s religion.
From a liability perspective, the best advice for the moment appears to be this: if you are thinking about using outside sources to gather information about employees, you should ask yourself whether the information you might gather wouldn’t be appropriate to gather by asking the employee directly. If that is the case, stick to the usual methods.
Cox and Palmer