Labor: Using Internet Searches for Reference Checking

In my last column, discussing some lessons to be learned from the resignation of HP CEO Mark Hurd, I suggested that following standard hiring or contracting procedures in which the background and references of Jodie Fisher, the woman who charged Hurd with sexual harassment, would have been checked might have helped HP avoid the entire mess. After all, a simple Google search would have uncovered the facts that (1) Ms. Fisher had appeared in racy movies in the 1980s that the tabloids could call pornographic, and (2) around the time she began her work for HP, she was a contestant on an NBC reality show featuring an Australian tennis star would choose as a companion either a 20-something contestant or a woman in her 40s who was "on the prowl." Ms. Fisher competed in the latter category and was the first to be kicked off. Those might not be disqualifiers for most jobs, but basing an employment decision on one of them probably wouldn't have been unlawful, and it may well have been appropriate for someone at HP to conclude she wouldn't be a wise hire for a position involving close contact with the CEO and "high level customers."

But other facts that might turn up in Google searches of job applicants could well be less titillating but more problematic. For that reason, corporate counsel might want to review the issues discussed here and caution those responsible for corporate hiring to give some thought to the issue before they adopt a rule that no one will be hired without first being Googled.

Why, you might ask? Isn't more information about a job hire always better? Not necessarily.

In defending against a discrimination claim alleging wrongful failure to hire, the most fool-proof defense is to show that the employer didn't know that the applicant fit into one of the protected categories that was allegedly unlawfully considered, leading to rejection. Employers have long known what not to ask on an employment application or in an interview (e.g. race, age, religion, national origin, health status, sexual orientation), and if the information isn't sought or acquired in some other manner and the aggrieved individual lacks direct proof that it was in fact considered, a wrongful-failure-to-hire case can be very difficult to win. On the other hand, if an employer knows some particular non-obvious fact about an applicant, such as their affliction with a progressively-disabling disease, their leadership in a recovering addicts support/advocacy group or their sexual preference, it may be faced with having to "prove the negative" - i.e., demonstrate their hiring decision wasn't based on that particular factor, which is always a difficult thing to do.

How could this play out in real life? Let's say an employer is looking for a CFO and has a short list of three candidates: An African-American male with a Harvard MBA; an Asian-American female who graduated from Wharton; and a Caucasian former All-SEC golfer who's known the CEO since he was a child, because they belong to the same country club and play together in club tournaments. How could doing some Internet research on these applicants lead the hiring effort into peril?

  • First, the company could selectively Google only the two minority candidates and not the golfer, because he's already "known." If one of the minority candidates were in fact chosen, of course, then probably no harm, no foul. But if the golfer were chosen, the two minority candidates have just been handed an additional and potentially potent argument in any claim of discriminatory hiring: The decision to search the Internet wasn't fairly applied. Lesson: If you're going to search the Internet, perform the search on all applicants being considered.
  • Even more likely is that the company will learn information on one or more of them that wouldn't have been revealed in the normal hiring process. An individual's religion, political views and family situation, among other things, may all be revealed through an Internet search. Websites that track individuals' political contributions (by candidate and party), almost always appear relatively high in a list of Google hits. Local newspapers stories, which turn up in Google searches, carry articles indentifying the leaders of churches, synagogues and mosques. One story out of California described a suit alleging discrimination on the basis of sexual orientation after a hiring firm learned through a Google search that an applicant headed an advocacy group supporting gay and lesbian adoption. Lesson: If you perform a Google search you may come into possession of all sorts of information you really don't want to have. And once you have it, it's not too much of a reach for an unsuccessful applicant to claim you relied on it.
  • You might incur obligations under, or run afoul of, the Fair Credit Reporting Act. This wouldn't apply if a company employee does the Web searching. But if the company hires a third party to perform Web research on applicants, it could be considered to have made a request for a "consumer report," since the Web search could develop information on applicants' "general reputation" that triggers the FCRA.
  • You might discover "facts" that aren't accurate or true. There are no fact-checkers policing the Internet. So if you think you've turned up a real gem of dirt, or positive feedback, on an individual, you need to consider just how reliable it is. Remember: anyone can write a Wikipedia article. A favorite New Yorker cartoon has two dogs sitting at a computer terminal with the dialogue: "On the Internet, no one knows you're a dog." Lately ads have begun to appear for such companies as Reputation Defender, an entity that promises to track references to you online and "scrub" the postings. And anyone who's purchased apps for the iPhone or an Android device must have wondered if those glowing, and flaming, reviews were really written by consumers who use the product, or by the developers or by competitors.

All this being said, and considering the pitfalls and risks associated with Internet searching for information on job applicants, I come out on the side of using them, at least for appropriate placements. Mostly for Senior Management and those who will have significant contact with the Board of Directors, Senior Management, the company's customers or the public. The erstwhile HP "high level customer greeter" Jodie Fisher fits right within this group. In fact, it turns out (according to unnamed sources sympathetic to Mr. Hurd) that he did Google Ms. Fisher, though two years after she was hired. His search apparently turned up the titles of the movies in which she had appeared.

As to the executives themselves, by the time a search for a senior executive has reached the "short list" stage, most of the sensitive facts about which a candidate isn't supposed to be asked - and a company isn't supposed to consider - are likely to be well known. The risk/reward analysis is likely to come out on the side of knowing whether there are any issues lurking on the Web that could be exploited by the tabloids. And, the likelihood of failure-to-hire discrimination litigation from an unsuccessful candidate for a C-suite position is probably geometrically lower than for entry level management, or blue-collar jobs.

I think businesses could also consider using Internet reference checking for another group - those in the creative and technological fields. Why might it be an acceptable strategy to Google for these types of positions? Well, in these fields, it's almost a negative factor if a candidate doesn't have a decent-sized footprint on the Internet. An actor without reviews probably hasn't been "noticed" in the shows in which she appeared. A "techie" without a website (and postings on technology blogs) may not be the type of person your company has set out to find. In these and potentially other job categories, the mere fact that the candidate has made the effort to develop a presence on the Internet could be significant.

The summary on this topic is that, as with most employment issues, the basics on how to conduct lawful hiring still apply: It's risky to come into possession of knowledge upon which the law says you can't base a hiring decision. If you don't ask for it and don't acquire it, you can make a persuasive case that you didn't rely on it. But if you've got it, you may have to try to persuade a government agency, or judge, or jury, that it played no role in your hiring decision. And that could be a tough sell.

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