Employers have to be mindful of their recruitment activities, especially when utilizing social media platforms or bots. With respect to multimedia litigation, it may become the new bane to recruitment, said Ifeoma Ajunwa, a lawyer and sociologist who teaches at Cornell University’s Industrial and Labor Relations School. “The same types of discrimination issues that you would see in traditional hiring are now just being transferred over to the platforms,” she said. “You could even argue that the new way—using platforms—is worse, because it’s more solidified; there’s no wiggle room, there’s no accidental meetings.”
Social Media Recruitment
As previously reported by EPTW, many organizations use Facebook and LinkedIn for recruitment. At what point does the usage become potential indicators for discrimination? In December 2017 and amended this last May, the Communications Workers of America (CWA) filed a class action lawsuit against Amazon.com Inc., Cox Media Group Inc., Cox Communications Inc., T-Mobile, and Facebook among others alleging their use of Facebook discriminates against the older worker. The complaint alleges that “[w]hen Facebook’s own algorithm disproportionately directs ads to younger workers at the exclusion of older workers, Facebook and the advertisers who are using Facebook as an agent to send their advertisements are engaging in disparate treatment.”
The complaint also alleges that, “in addition to encouraging and allowing employers and employment agencies to restrict which Facebook users will receive job ads based on their age,” Facebook’s algorithm further factors in age when determining which users among the population chosen by the advertiser will actually see the ad. A report by ProPublica and New York Times in December 2017 found a HubSpot ad explicitly aimed at people aged 27 to 40 appearing on Facebook in November, according to screenshots in the report. The limited age range meant that people outside of those ranges would not see the ad on Facebook.
Furthermore, the pervasive use of LinkedIn as a passive recruitment platform has given heartache to defense attorneys. Recruiters have access to work history, however long, and pictures. Although defense attorneys generally say to send the potential applicant an invitation to apply email, because if they do not apply, they are not an applicant. However, that is not the issue. The issue is how someone was selected over another for the invitation email. Therefore, the invitation email may not be enough to prevent liability for discriminatory practices.
Although the LinkedIn situation was not contemplated in 1980 under the Uniform Guidelines on Employee Selection Procedures, logically it could be argued that when an assessment is made on a person whether to invite or not invite to apply for a position, that assessment is one step in the selection process for a new employee. Therefore, all requirements prescribed in the Uniform Guidelines must be adhered to as well. Otherwise, it could lead to liability of discrimination in recruitment.
Bot Recruitment
Chatbots are being used in recruitment to collect information from candidates such as their resume and contact information; ask screening questions about candidates’ experience, knowledge, and skills; rank candidates on metrics such as qualifications, engagement, or recent activity; answer FAQs about the job and the application process; and schedule an interview with a human recruiter. There are other bots that will search the internet and find applicants for jobs based on publicly available information from blogs to LinkedIn to Facebook and other sources.
The issue of bots as an EEO liability is dependent on the algorithms used to generate actions and responses. Although early in adoption, if bots become the norm, employers need to ensure that filters are EEO compliant. Further, the search filters for bots bringing in potential applicants have to be reviewed to ensure that the candidate profile compiled is accurate, that it is the same person with regards to each item used for selection, and that the same criteria is used to identify each potential applicant. Moreover, any predictive testing must meet with the Uniform Guidelines requirements.
It is a new world for recruitment. Employers must take careful steps to ensure EEO risk is minimized.
Source: Bloomberg 5/29/18, The Ladders 5/29/18, Ideas2IT 12/15/17