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Inappropriate Social Media Activity Dooms Job Applicant’s Prospects

Being connected to not just your friends, but their friends and their friends’ friends (it’s all six degrees of separation, right?) means that it’s become increasingly hard to stay anonymous when using an online dating platform.  Just ask one recent male user of OkCupid who made vulgar and inappropriate comments to a female user.  Her response?  Post the conversation and the man’s profile picture to her Facebook account.  He insulted her, she publicized him.  So far, there are no legal implications.

Her friend, an independent recruiter for tech startups, saw the post and recognized the man’s profile picture.  As it turns out, it was also his LinkedIn profile picture, and he had just applied for a position with one of her clients.  Her response?  Withdraw his application from consideration and tell him to treat women better online.  He insulted her friend, she withdrew his application for employment.  Here is where the criticism started.

The question: Can a recruiter reject a potential applicant based on inappropriate comments made on a dating site?

The short answer: Yes.

Making inappropriate remarks online, whether sexist or racist or homophobic or generally harassing or discriminatory, is not protected conduct, and the recruiter’s decision to withdraw this man’s application from consideration was not only legal, but perhaps necessary.  If the recruiter had informed the company about this individual’s comments, and the company still hired this individual with the knowledge that he is capable of making sexually abusive, hostile, and sexist remarks to women, it could potentially leave the company open to a lawsuit if he engaged in this behavior in the workplace, and further, if word spread throughout the workplace, it could negatively impact employee morale and leave the company open to a public relations backlash, among other issues.

Having a third-party independent recruiting firm conduct social media searches allows employers to provide objective and legitimate criteria warranting rejection (i.e. does not speak to other people in a demeaning or harassing manner) without knowledge of the applicant’s protected characteristics (i.e. age, race, gender, etc.).  This is important because pre-employment searches, while rampant in recruiting, also expose employers to liability for discrimination based on non-job-related factors, such as gender and race.

The decision to reject job applicants who engage in this conduct must be consistent, regardless of the qualifications or other characteristics of the offending applicant.  If an employer rejects one applicant for engaging in this behavior, but hires another applicant who engages in the same conduct but who is a different sex, race, age, national origin or other protected category, it could form the basis of a discrimination claim.  For example, if the gender roles were reversed in the scenario above, would the recruiter have withdrawn a woman’s application from consideration?  The answer should be yes.

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Natalie C. Groot is a Mintz attorney who litigates employment disputes on a wide variety of employment and labor matters. Natalie's litigation practice includes non-competition and non-solicitation agreements; discrimination, sexual harassment, and retaliation claims; and wage and hour compliance matters.