Using Social Networking Sites for Recruiting? Beware Disparate Impact Claims

Using social networking sites for recruiting is not a new phenomenon; three years ago, Maureen Crawford-Hentz, a recruiter for Osram Sylvania, said

Social networking technology is the absolutely the best thing to happen to recruiting -- ever.

It seems as though enthusiasm for social networking within the recruiter ranks has not diminished. In June of this year, LinkedIn launched the "Recruiting with LinkedIn Blog". Matt Warburton described this blog as one for "recruiters and folks who rely on LinkedIn for their hiring needs".

Using social networking for recruiting purposes may have made recruiters' jobs easier, but there are inherent risks. In a recent article appearing on Workforce.com, Fay Hansen cautions employers that sourcing candidates from Twitter, LinkedIn or other social networking sites may open them up to discrimination charges. Ms. Hansen states:

Some employers now rely heavily or even exclusively on Twitter or LinkedIn to fill open positions. While this approach may create short-term cost savings and new efficiencies, it may also skew applicant pools and trigger discrimination lawsuits.

Ms. Hansen's article includes the following quote by Pamela Devata, a partner in the Chicago office of Seyfarth Shaw:

Sourcing from professional network sites such as LinkedIn carries a risk tha the method could be challenged on discrimination grounds. It represents a hiring pool that is not open to the general population. Using a limited network may have a disparate impact. If hiring through these networks can be challenged, it will be.

The potential for a disparate impact claim stems from the demographics of the typical user of social networking sites. The latest data from Quantcast indicates that the majority of people using LinkedIn are age 35 and above and have at least a college education. The gender composition is approximately equal; 53 percent of the users are male. 85 percent of users are self-identified as caucasian, while 9 percent are self-identified as Asian.

Paul Mollica, a partner at Meites, Mulder, Mollica & Glink in Chicago, is also quoted in Ms. Hansen's article. According to Mr. Mollica, the first employer who is sued for disparate impact "will have to be very resourceful" since it will be very difficult to establish a reason for relying exclusively on social networking in recruiting. This is certainly an issue everyone will be monitoring.