Employers often rely on social media to achieve important workforce-related goals, which can include hiring a top-notch workforce, protecting the business’s online reputation, and fostering a collegial work environment. Recently, the Equal Employment Opportunity Commission strongly signaled to employers that it is ready to take a closer look at how equal employment opportunity laws are impacted by social media.
At a recent public meeting held by the EEOC, a panel of experts discussed the different ways social media can be relevant to the laws this government agency enforces. The panel highlighted claims of unlawful discrimination or harassment on the basis of race, color, religion, national origin, sex, pregnancy, age and disability. For example, in one case discussed by the panel, a 61-year-old applicant alleged that social media recruiting practices placed older individuals at a disadvantage compared to younger counterparts. In another case, an employee cited the Facebook posts of another employee to support a claim alleging a racially hostile work environment.
The EEOC public meeting is similar to the early warnings sounded by the general counsel of the National Labor Relations Board in 2011. Many employers were surprised to learn how social media could implicate the National Labor Relations Act. Likewise, employers can expect in the coming months to see new EEOC publications addressing social media in the workplace – and even litigation led by the EEOC against employers to address employment law issues related to social media.
More than ever, employers should update handbook policies to comply with a wide range of laws. Additionally, employers should carefully consider laws that prohibit discrimination and retaliation before responding to the social media activity of an employee or applicant. Consulting with legal counsel on these issues may help save your company from becoming the EEOC’s next social media case example.
Jesse Dill (@jesse_dill) is an associate attorney at Walcheske & Luzi, LLC in Brookfield.