Being connected to not just your friends, but their friends and
their friends' friends (it's all six degrees of separation,
right?) means that it's become increasingly hard to stay
anonymous when using an online dating platform. Just ask one
recent male user of OkCupid who made vulgar and inappropriate
comments to a female user. Her response? Post the
conversation and the man's profile picture to her Facebook
account. He insulted her, she publicized him. So far,
there are no legal implications.
Her friend, an independent recruiter for tech startups, saw the
post and recognized the man's profile picture. As it
turns out, it was also his LinkedIn profile picture, and he had
just applied for a position with one of her clients. Her
response? Withdraw his application from consideration and
tell him to treat women better online. He insulted her
friend, she withdrew his application for employment. Here is
where the criticism started.
The question: Can a recruiter reject a potential applicant based
on inappropriate comments made on a dating site?
The short answer: Yes.
Making inappropriate remarks online, whether sexist or racist or
homophobic or generally harassing or discriminatory, is not
protected conduct, and the recruiter's decision to withdraw
this man's application from consideration was not only legal,
but perhaps necessary. If the recruiter had informed the
company about this individual's comments, and the company still
hired this individual with the knowledge that he is capable of
making sexually abusive, hostile, and sexist remarks to women, it
could potentially leave the company open to a lawsuit if he engaged
in this behavior in the workplace, and further, if word spread
throughout the workplace, it could negatively impact employee
morale and leave the company open to a public relations backlash,
among other issues.
Having a third-party independent recruiting firm conduct social
media searches allows employers to provide objective and legitimate
criteria warranting rejection (i.e. does not speak to other people
in a demeaning or harassing manner) without knowledge of the
applicant's protected characteristics (i.e. age, race, gender,
etc.). This is important because pre-employment searches,
while rampant in recruiting, also expose employers to liability for
discrimination based on non-job-related factors, such as gender and
The decision to reject job applicants who engage in this conduct
must be consistent, regardless of the qualifications or other
characteristics of the offending applicant. If an employer
rejects one applicant for engaging in this behavior, but hires
another applicant who engages in the same conduct but who is a
different sex, race, age, national origin or other protected
category, it could form the basis of a discrimination claim.
For example, if the gender roles were reversed in the
scenario above, would the recruiter have withdrawn a woman's
application from consideration? The answer should be yes.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Seyfarth Synopsis: Employers in California: be aware and prepare for new laws increasing minimum wages and mandating overtime pay for agricultural employees; expanding the California Fair Pay Act to race and ethnicity and to address prior salary consideration; imposing new restrictions on background checks and gig economy workers; and more. Small employers will be relieved the Governor vetoed expanded unpaid parental leave, but it will likely return in future sessions.
A federal district court in Massachusetts has held that the shareholders and officers of a double-breasted construction company can be indicted and could go to prison for fraudulently misrepresenting their business...
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