The Facebook Folly: Why Browsing an Applicant’s Facebook Profile Could Present Problems for Missouri Employers

Within the past few months more and more news outlets have reported stories of employers asking job applicants for their Facebook login information. While many applicants understandably feel uncomfortable with the idea of their potential employer delving through their private lives, applicants are typically not in the position to decline.

This new trend has sparked an inevitable inquiry: is it legal? At this time, the answer is uncertain. Like many issues arising from the fast-paced and ever-changing world of the Internet and social media, the law has not caught up with the question. There does not appear to be a statute, regulation or court decision directly on point – either at the federal or state level. Consequently, experts on both sides of the issue have begun considering and arguing whether any statutes, regulations, or court decisions indirectly apply to the issue.

Missouri statute does not appear to directly prohibit such a practice; however, this does not mean it is wise for employers to engage in it. The reason has little to do with the actual practice of asking for the login information, but rather concerns what may be potentially discovered by such practice. No, I am not referring to finding rants about past employers or photos of bad decisions and misdemeanors. Employers should be concerned about finding family or pregnancy photos, photos of the applicant in the hospital, and/or religious views.

The employer’s discovery of this latter information could actually be used against the employer if that applicant chooses to pursue an employment discrimination complaint or lawsuit. The Missouri Human Rights Act provides that an employer, in making its hiring decisions, may not consider, classify, or discriminate against an applicant’s race, color, religion, national origin, sex, ancestry, disability or association with an individual with a protected status.* Requiring applicants disclose their Facebook accounts would appear to privy the employer to information about these protected traits at the very point in which they make their hiring decisions. Thus, the employer may lose the ability to argue it wasn’t even aware the applicant had the protected trait when it made its decision.

Note that merely becoming aware of a protected status will not constitute per se discrimination. However, the employer’s knowledge, amongst other factors, may be sufficient to constitute an inference of discrimination, and an inference of discrimination is actually sufficient to progress a complaint or lawsuit for employment discrimination. Ultimately, the employer may even be forced to disclose its own private information – its reasoning for hiring (and not hiring) applicants.

Thus, while there does not appear to be any direct answer as to whether the practice is legal, there are certainly some potential adverse consequences employers should consider before their next interview.

*Although this post is Missouri-state-law specific, it is important to note that these traits and others are also protected on the federal level by statutes such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Discrimination Act.