I’ve wondered about this since 2003.
Internet technology let’s us put our thoughts and ideas out there. The contrast is, whether we should put our thoughts and ideas out there. With the development of Facebook, I assumed that the scales had weighted more heavily that internet technology was here to stay, and that people would be using the service much like how postal mail, telephones, and the editorial pages of newspapers (which only a select group of people read nowadays for opinion) were accepted along the way.
The idea that someone (a third party) could try and take your postings and “promote” them in order to try and cause you financial or employment harm would, then, sift into the bucket of a tort called “interference with employment relations” or “interference with prospective economic gain”. Alternatively, if a prospective employer went “Googling”, or snooping into things beyond what is required by a job, then that employer (prospective employer) would be opening themselves up to the bevy of discriminatory concerns that are still very much part of the black letter law–despite some people’s efforts to push us back into the 19th century.
But maybe this is my own naivety. After all, I know that some companies and employers casually dis Title VII, and then come up with all sorts of elegant excuses for why they can. I know from reading that any number of companies hit the retaliation tripwire of Title VII. Let’s review this one:
All of the laws we enforce make it illegal to fire, demote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).
For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred.
Retaliation & Work Situations
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
The key phrase in there is “any aspect of employment”. The Title VII nondiscrimination provisions relate to hiring as well as on-the-job decisions.
This becomes a little meta, but you can see where, very quickly, if a company starts snooping into the internet presence of a person, or a set group of people, that employer can quickly come to a problem. Do you search everybody? Do you search and, when you discover that the person has Facebook friends of a certain ethnicity or race, move on to the next candidate? How do you show your good intentions (that you were not snooping for purposes of running afoul of Title VII)?
I really don’t know the answer to this one. If prospective employers use the internet to find out if there are some kind of “bad things” about a prospective employee that were reported in traditional media like newspapers and televisions, that might be one category. But if the snooping goes to what kind of editorialist that employee might be on the editorial page of a newspaper, or if they have black friends on Facebook (or married to a black person), I could see where that brilliant snooping could really backfire.
What if the employer has a social media policy with regard to talking about their company? That is a different story, isn’t it?
[More in a bit.]