Labor: Demanding applicants’ social media passwords may open the door to discrimination claims

Senators call for federal investigation into the controversial hiring practice

Following reports of employers requesting Facebook usernames and passwords from job applicants as part of the interview process, such controversial practices and their potential legal ramifications have gained significant attention. Perhaps most notably, U.S. Senators Richard Blumenthal and Charles E. Schumer have called on the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) to launch federal investigations into this employment practice. Employers currently requesting such information of job applicants are cautioned to follow this developing issue and remain aware of the potential legal issues involved.

Perhaps the greatest risk employers face by requesting an applicant’s login information for a social networking site is a claim that a refusal to hire was based on illegitimate factors, such as an applicant’s race, religion, age, or disability. It is generally known that Facebook elicits a wealth of information from its users. An employer would have a difficult time claiming that it was unaware of, for example, an applicant’s age, if that individual posted her birthday on her Facebook profile. 

Contributing Author

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John Kuenstler

John F. Kuenstler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department. Mr....

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