Social Media and HR: A Lawsuit Waiting To Happen

Once again the topic of “personal branding” and managing your personal reputation online comes up, as it does frequently these days.  I make no bones that I am no fan of this idea of personal branding – it is contrived, and silly, and only serves as a buzz topic in the social media encyclopedia.   But it continues to be talked about, and now goes even further: apparently, HR people are now actively searching your social media presence as part of the recruitment process, amidst all sorts of talk about social media as that mythical “Permanent Record.”

For those of you who have yet to hear about this brilliantly conceived plan by our HR brethren, it goes something like this: attend to your personal brand, and don’t portray anything within your various social media activities that might impugn that brand, because, apparently, HR people have decided that they are going to search your Facebook page, Twitter account, blogs, etc. etc. ad nauseum when screening you as a potential candidate for a job.

Oh, yes – remember that picture of you doing keg stands in college?  Or flashing your magnificent breasts at Mardi Gras?  Almost two-thirds of HR professionals – based upon a Microsoft study – intend to use these to judge you as a candidate!  Zounds!  Let us start a new industry; we can call it the “reputational white-wash” business – a Facebook page going into a washing machine can be our logo!  Excellent – we are on to something there!

Upon further thought, however, perhaps we should instead go into employment law.  And here’s why:

Let’s just, for the sake of argument, say that you partied in college, and posted pictures of that on your profile.  Those wily HR professionals search for your Facebook page and find the incriminating pictures.  Egads – you partied in college?!

Oh, and on the same page, perhaps they saw your birthday.  Didn’t get the job? Let’s talk about age discrimination.

Perhaps they saw in your picture that you were black? Hmmm – racial discrimination.

Kissing another man?  Discrimination based upon sexual preference.

And then perhaps they search your Twitter stream and find out about that three-way you had with those two Swedish stewardesses!  Good find, HR!  Oh, yes, and in the same stream they found a reference to the Jewish services you attend on a regular basis.  I think that would be religious discrimination.

“Oh,” say those diligent and conscientious HR professionals, “we didn’t refuse to consider you for a job because of those things!  They just happened to be there when we were searching for proof that you partied in college!”

Really?  Prove it.  Because the crux of the matter is not whether you can or cannot prove that those protected categories of a candidate’s life were not considered – and I would suggest you would be VERY hard-pressed to prove it; only until you as an HR professional actively search for that incriminating “permanent record” will you find the evidence you want, and potentially a large body of evidence you are not, as a potential employer, entitled to consider in your hiring process.  Sure, you may argue that the burden of proof is actually on the candidate to take you to court, and to prove that you discriminated against them. And if you are an HR professional, slap yourself upside the head.  Because I as an executive responsible for the financial health, operations and reputation of the company know that it is not prevailing at trial that counts; it is avoiding a trial, and the potential financial consequences, operational distractions and inevitable bad press and reputational damage of the company in which such a practice will result.

Let me gaze into my crystal ball for a moment.  Hmmm – a high profile company engages in this practice, a spate of lawsuits arise, the company settles those lawsuits out of court and quietly kills this practice, with the broader industry following suit.

So I’ll make this easy on those HR types out there, and stipulate that I did, indeed, party in college.  A lot, in fact.

And if you bring me a candidate you find had a threesome with two Swedish stewardesses by searching their social media presence? Fire yourself, right after you hire that guy.

Because I could use some pointers.