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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: 




                                   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 population'  visiting sites like Facebook,2 Myspace,3
Twitter,4 and  LinkedIn,5  the employer  is directed to the applicant's social networking
     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 PLI/PAT 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_globalfacesmar09.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. TWrITrER, 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). LinkedIn 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 Conipnent 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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