Civil Rights Get Trampled in Internet Background Checks

The new ruling by the U.S. Federal Trade Commission, that gives data mining companies like Social Intelligence Corp, legal coverage to archive years of consumers posts on social networks and sell this information to would be employers as part of their background checking service for job applicants is concerning on a number of levels.

These concerns include ownership of information, the meaning and value of privacy settings, the long-term impact on consumers – particularly minors who have a harder time thinking of the future when they are posting in the now.  But there is another aspect that also needs careful consideration, and this is the potential impact to our civil liberties.

Through hard fought battles in the 20th century, we gained the right to protection from discrimination based on gender, religion, race, color, national origin, age, marital or family status, physical or mental disability, sexual orientation, political affiliation, financial status, and more. To protect these rights it became illegal for would be employers to even ask questions about these topics.

Today, would-be employers don’t have to ask the illegal questions of the candidate, the information is but a background check away if you ask the data miners to provide it. The very discrimination that civil rights were established to prohibit can now happen without an employer or company ever being at legal risk.

In January 2010, Microsoft conducted research on the expanding role of online reputation. One aspect of the research looked specifically at how recruiters and HR professionals use online information in their candidate screening process.

While I am not a lawyer, it would seem to me that some of these categories clearly fall outside the boundaries of information that is legal to ask in an interview.

It would also seem to me that some of the sites being searched by recruiters and HR professionals – or by their proxies the data miners providing background information – are inappropriate.

If it is illegal to ask questions with discriminatory repercussions, shouldn’t it also be illegal to ask data mining companies to provide this information? To claim that soliciting this information from data mining companies – or by recruiters, HR personnel, or hiring managers – is somehow different than asking the applicant questions seems like splitting hairs.

To be clear, as the Microsoft study shows, the collection of information via the internet that can be used to discriminate against potential candidates was being done years in advance of the FTC’s ruling, but that ruling legitimizes a very concerning practice. At a minimum, shouldn’t information that would-be illegal to ask be removed from any background information served to would be employers?



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