85 Temp. L. Rev. 229 (2012-2013)
Better Safe than Subjective: The Problematic Intersection of Prehire Social Networking Checks and Title VII Employment Discrimination

handle is hein.journals/temple85 and id is 241 raw text is: 







    BETTER SAFE THAN SUBJECTIVE: THE PROBLEMATIC
      INTERSECTION OF PREHIRE SOCIAL NETWORKING
 CHECKS AND TITLE VII EMPLOYMENT DISCRIMINATION*


                                   I.   INTRODUCTION

     It takes less than a minute. An employer receives a resume and types the
applicant's name into an Internet search engine. Assuming that applicant is among the
two-thirds of the world's Internet populationi visiting sites like Facebook,2 Myspace,3
Twitter,4 and LinkedIn, the employer is directed to the applicant's social networking
profile.
     Instantly, the employer obviates Title VII mandates prohibiting employers from
inquiring about an applicant's gender, race, national origin, and religion. The social
networking profile provides the employer with various fields of personal information
the applicant has opted to share, such as gender, age, religious affiliation, political
preference, marital status, familial status, sexual orientation, education, interests, and
activities. The photo- and video-sharing capabilities of these sites may additionally
provide the employer with insight as to the applicant's race, disability status, and
lifestyle choices.
      This scenario is increasingly common-employers now           routinely utilize social
networking sites in order to research, reject, and decide to hire candidates.6 One survey


* Megan Whitehill, J.D. candidate, Temple University Beasley School of Law, 2013. Many thanks to the staff
and editorial board of the Temple Law Review for their hard work and diligence in improving this Comment. I
would also like to thank Professor Brishen Rogers for providing me with valuable guidance throughout the
writing process. A heartfelt thank you also to my family and friends for their love and support throughout law
school. Finally, I would like to dedicate this piece to my grandfather, the late Peter J. Sweeney, whose example
inspires me to always work my hardest and write my best.
     1. Michael A. Curley & Debra Morway, Legal Issues Arising from the Use of Social Networks at Work,
1034 PLIIPAT 95, 98 (2011) (citing Global Faces and Networked Places, THE NIELSEN COMPANY, 1 (March
2009), http://blog.nielsen.com/nielsenwire/wp-content/uploads/2009/03/nielsen-globalfaces-marO9.pdf).
     2. FACEBOOK, http://www.facebook.com (last visited Oct. 28, 2012). Facebook is a social networking
site that allows users to add friends and send them public and private messages; create and update a personal
profile with information regarding education, employment, date of birth, religious affiliation, political
affiliation, sexual orientation, marital status, family status; join groups and indicate personal interests; post
pictures and videos, chat on line with friends; post statuses. Id.
     3. MYSPACE, http://myspace.com (last visited Oct. 28, 2012). Myspace allows users to create personal
profiles, add friends, and update statuses. Id.
     4. TwrrrER, http://twitter.com (last visited Oct. 28, 2012). Twitter is a social networking and
microblogging service that allows users to send short text messages (tweets) 140 characters in length, to
friends (followers). Id.
     5. LINKEDIN, http://linkedin.com (last visited Oct. 28, 2012). Linkedtn is a social networking website
dedicated to work-related networking and allows users to post information related to education and work
experience, and to connect to fellow users of the site, known as contacts. Id.
     6. Curley & Morway, supra note 1, at 100-05. The arguments presented in this Conilnent apply to
employers that access an applicant's publicly available social networking page as well as those employers that
access social networking information protected by a user's privacy settings. This Comment focuses on the

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