Reproduced with permission from BNA's Americans with Disabilities Act Manual Newsletter, 23 ADAM 54 (Apr. 17, 2014). Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com.
In an April 2014 interview, attorney Timothy McConville advises employers on the use of social media, best practices for situations involving leave as a reasonable accommodation, and emerging litigation issues. The following excerpt from the interview relates to employers' use of social media.
BNA: The EEOC recently held a public meeting on how increased use of social media might affect employment discrimination issues in the workplace. What steps would you advise employers to take to avoid running afoul of the ADA in their use of social media for hiring and other employment actions?
McConville: Social media can be a very valuable tool for identifying candidates, but improper use may give rise to discrimination claims. Whether it’s the ADA or Title VII or any other statute providing for equal employment opportunity, employers have to control their processes for selection of candidates for employment opportunities. Generally, the same neutral process should apply to all of the eligible candidates, and one candidate should not be subjected to, or get the benefit of, additional elements applied to him or her while the same process and standards are not applied to other similarly situated candidates. The point is to ensure that a criterion is job-related and consistent with business necessity and that all similarly situated candidates are subject to the same standards and process. Over time, as new methods like social media arise and begin to be used for hiring and other employment actions, employers have to be careful to integrate the new methods into their selection process in a measured, valid way that ensures equal employment opportunity.
Timothy M. McConville leads the labor and employment group at the law firm of Odin, Feldman & Pittleman, P.C. in Reston, Virginia. Mr. McConville may be reached at 703-218-2119 or firstname.lastname@example.org. Follow him at laborandemploymentlawcocktail.com and on Twitter @worklawguy.