Ed Walters / April 15, 2011

Social Media Discrimination

We all know that it’s illegal for employers to discriminate on the basis of factors such as age, sex, race, religion, and disability. But there aren’t clearly-defined laws against discriminating based on social media activity. With online access to ever-multiplying social media portals, employers are increasingly investigating employees’ social media information in order to make hiring and firing decisions. Should this be allowed? Can anything protect workers from this social media discrimination? Several recent articles address this expanding phenomenon in employee-employer relations.

A New York Law Journal article mentions Lifestyle Discrimination Statutes, which have been enacted in several states, and which may form a basis for protecting some social media activity. New York’s statute, called the Lawful Off-Duty Conduct Law (N.Y. Labor Law §201-d), prevents employers from taking action against an employee for any of the following: “political activities”; “legal use of consumable products”; legal “recreational activities”; and union membership along with exercising of union rights. The first three of these activities have been very narrowly interpreted by the courts, seemingly providing no solid basis for protection of employee behavior.

In New York, one employee alleged she was fired because of political affiliation, but the court did not apply the law’s political prong to protect her. Another case involved a state employee fired after an outside-of-work argument with a state official in a restaurant. A claim under the recreational activites prong did not help her. The law specifically defines what constitutes protected political and recreational activity, and courts have adhered closely to the wording. Courts have refused to interpret dating as recreational. Cohabitation has also been denied as a recreational activity, and thus not protected against becoming grounds for firing. Although social media wasn’t involved in these cases, they show clearly how the small scope of protected political and recreational behaviors is unlikely to encompass internet postings. The union activity provision of this law may offer more hope to workers however. On October 27, 2010, the National Labor Relations Board filed a charge of unfair labor practice against an employer for firing a worker who – on facebook – referred to her boss as a psychiatric patient. That case was settled before a hearing, leaving no conclusive precedent in its wake, but we can infer that claims of union activity might be the best ways to protect social media posts for now.

Employees and attorneys may soon find creative ways to apply Lifestyle Discrimination Statutes. Moreover, some states have more broadly worded laws than New York. Colorado’s open-ended wording begs interpretation, as it seeks to protect termination for “any lawful activity off the premises of the employer during nonworking hours.” But in employment-at-will states like New York, very little behavior is safe from incurring adverse employer action.

The phenomenon of discriminating based on employees online behavior can also be explored from the employer’s point of view.  With social media, employers may have loads more information about a potential job candidate before making a hiring decision. Bosses may learn details about an applicant’s personal life, including religion, disability, or national origin for example. Those handling hiring decisions must remember that this information can’t be a basis for discrimination, no matter how it was obtained. By using social media as a way to screen candidates, employers open themselves up to the risk of using it illegally. Jessica Miller-Merrell’s blog offers advice for employers navigating these waters.

Courts are clearly still defining their stance on social media activity. We need to continually keep watch for new developments. We can follow the blogs of professionals who deal with these issues, and keep tabs on relevant court cases in progress. Employees and employers alike must use caution when posting online and judging posts. For the time being, the burden seems to fall mostly on the employees to restrain their social media posts, until more adequate protections arise under law.

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