Social Media and Discrimination. Created by: Annie Weatherby-Flowers Melissa Gombar September 2012

Transcription

1 Social Media and Discrimination Created by: Annie Weatherby-Flowers Melissa Gombar September 2012

2 Equal Opportunities Division Charged with the mission of enabling individuals to live and work free of discrimination. Responsible for the remedy of discrimination complaints brought by individuals. Provides community education and technical assistance so people know and understand their rights and responsibilities.

3 The World of Social Media in 2011 All The Statistics, Facts and Figures

4 SOCIAL MEDIA

5 What is social media?

6 781l1l1l0l0l0l0l218l218l2-1l1l0&q=social%20media What do you use? Who has access to the information posted?

7

8

9

10 Statistics Craiglist.com is the leading classifieds service with a reported 49.5 million visitors each month CareerBuilder.com Survey 3,169 hiring managers 22% screen job seekers using social media sites. 34% used information in a decision not to hire 24% used information to confirm a decision to hire.

11 DISCRIMINATION

12 Social Media & Discrimination What information is readily available through the various forms of social media? What kinds of issues could this create for a: Job applicant Employer Housing applicant Housing provider Business owner

13 Protected Classes Age Arrest Record (Not Housing) Citizenship Status Color Conviction Record (Not Housing) Credit History (Employment Only) Disability/Handicap Domestic Partnership Family Status Gender Identity Genetic Identity (Employment and Housing Only) Less Than Honorable Discharge Marital Status

14 Protected Classes National Origin Physical Appearance Political Beliefs Race Religion Retaliation Sex Sexual Orientation Social Security Number (Not Housing) Source of Income (Not Housing) Student Status Victim of Domestic Abuse, Sexual Assault, or Stalking (Housing Only)

15

16

17 Discrimination Unfair or unfavorable treatment based on protected class. Denial of a reasonable accommodation. Harassment repeated unwelcome or uninvited comments or behaviors. Retaliation actions taken against individual because they complained about or help with an investigation regarding discrimination.

18 Discrimination Do you have kids? Do you plan to? Are you married? What health problems run in your family? Where were you born? What is your religion? Do you attend church?

19 GINA A covered entity may not request, require, or purchase genetic information of an individual Request includes conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information Exception: unwittingly receiving genetic information Includes information from a social media platform the employer/supervisor was given permission to access by the creator of the profile

20 CASE EXAMPLES

21 Case Example John tweets that his older brother is being treated for Huntington s disease. His manager follows John s twitter account and notices the genetic information. A week later John is fired because the manager fears John will soon begin to show symptoms.

22 Case Example Amy applied for a job as a Project Manager. After two interviews she was the top candidate and was offered the job. When checking her references the hiring manager Googled her name and found her Facebook profile, where he learned that she was active in the Lesbians for Change political movement. As a result of the information he found, he did not offer her the position.

23 Case Example Miguel and his co-workers all follow each other on Twitter, including the foreman. Miguel finds out that he might be earning less per hour and feels that it may be because of his national origin. He tweets about the situation. Several co-workers confirm the salary difference and all claim that it is unfair. Two days later, the foreman calls him and the co-workers into his office and suspends them for three days without pay.

24 Case Example Robert really likes his co-worker Tammy and asks her out on a few occasions. She always says no. Robert decides to post information on his personal blog about Tammy. Co-workers begin to ask her when she is going to go out with Robert. She complains to her employer. What should her employer do?

25 Case Example Sally invites all of her co-workers to her baby shower and posts the photos from the event on her Facebook page. She friends all of the co-workers that were in attendance so they can see the pictures. Also on her Facebook page are racist jokes, comments, and cartoons. A co-worker complains about the material on Sally s Facebook page. What should the employer do?

26 Other areas The Fair Credit Reporting Act Spokeo case June 2012 National Labor Relations Act Costco case September 2012 Computer Fraud and Abuse Act Stored Communications Act

27 Case Example Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work. Who is the hiring manager? I m sure they would love to know that you will hate the work. We here at Cisco are versed in the web. The job offer was rescinded. CA Labor & Employment Bulletin, p. 91March/April 2010

28 Case Example Konop v. Hawaiian Airlines, Inc., 302 F.2d 868 (9 th Cir. 2002), holding that employee s private website, which included critical posts about employer, was protected from access by unauthorized users under the Stored Communications Act. The protection applied even though officer who access the website was given the necessary password from an employee.

29 Case Example Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010) Stengart ed her lawyer through her personal , but using her employer s laptop. Employer had a policy allowing it the right to review all matters transmitted on its media systems. Held: Communication was privileged, and defense counsel had violated the privilege by accessing personal cached on company-issued laptop.

30 Case Example What about these examples? Text: OMG u look gr8 in ur jeans! Posting: This girl at work, she better keep my name out of her mouth, if she knows what is good for her! Tweet: Do not work at Mad Spirits, its Wack! Plus the owner is sleeping with the waitresses!

31 BEST PRACTICES

32 Individuals 1. Posts are not private they are public! 2. Limit what you post on social media think before you click 3. Know the company s policies on social media use.

33 Businesses 1. Have a social media policy in place 2. Clearly communicate social media policy 3. Be aware of potential disparate impact implications in social media use 4. Be consistent

34 Social Media Policies 1. Start with current policies harassment/internet 2. Specifically tailored to company culture 3. Address social media use on and off company time 4. Be specific and provide examples 5. Incorporate virtual harassment 6. Respect employee rights under local, state, and federal laws

35 Madison Equal Opportunities Division Wisconsin Equal Rights Division and Equal Employment Opportunities Commission and National Labor Relations Board and

36 Questions and Evaluations. Thank you!