Watch Those Tweets: The EEOC Looks at Social Media

If an employee posts a negative remark on Facebook about a co-worker that makes the co-worker uncomfortable at the office, can the employer be responsible for a hostile work environment?

Cases like these were cited at an Equal Employment Opportunity Commission hearing last week on how the use of social media--by employees, job seekers and the employers who follow their tweets and LinkedIn profiles--can affect enforcement of employment discrimination laws.

So far, there have been few such cases, EEOC officials say. But given the explosion in social media use, there is great potential for more, prompting the agency to gather input from employment lawyers on how it can better enforce the laws and guide employers to avoid the kinds of landmines that can intersect with social media and the workplace.

Commissioner Victoria Lipnic, who organized the hearing, called it a "listening session."

Much of the focus was on hiring practices. Social media can expose employers to more information than they'd generally be allowed to ask in interviews, such as someone's age, family medical history, religion or pregnancy status. Because federal employment laws forbid using those factors to discriminate, an employer's simple knowledge of it could spur allegations from people who suspect an unfavorable action against them was related.

Many lawyers say those legal risks shouldn't stop employers from using social media to broaden their applicant pools or search for lawfully useful information, such as online resumes or professional profiles.

But inconsistent search practices could raise red flags, they say. An employer could be accused of probing one applicant and not another for reasons that could be viewed as discriminatory, such as an ethnic-sounding name.

"We are constantly refining how these tools should and should not operate in the workplace," said Jonathan Segal, an employment lawyer for Duane Morris LLP who represents employers and testified on behalf of the Society for Human Resource Management. In a study the group conducted last year, 77% of companies indicated they were using social networking sites to recruit candidates for specific jobs, up from 56% in 2011 and 34% in 2008. LinkedIn was most popular, followed by Facebook and Twitter. Far fewer employers said they used social media to screen applicants, often fearing legal risks.

Issues have also emerged in the employment context, where harassment is "a particularly thorny issue," said Renee Jackson, an associate who counsels employers for Nixon Peabody LLP and testified at the hearing. Supervisors who "friend" subordinates on Facebook could witness online exchanges revealing harassment that the supervisor would need to report, Ms. Jackson said. Employers aware of such postings risk being liable for a hostile work environment, said Lynne Bernabei, a plaintiffs' lawyer who testified.

In one case cited, an employee of a federal agency filed a complaint against the agency alleging that a co-worker's negative Facebook postings about him made him uncomfortable at the office and amounted to racial harassment. The agency dismissed the complaint for failure to state a claim but the EEOC decided it could go forward and has remanded it to the agency, saying the allegations when considered together reflect an actionable claim. The case "acknowledges that a social media posting by a co-worker may contribute to the creation of an unlawful hostile work environment," said EEOC lawyer Carol Miaskoff.

The EEOC sided with the employer in a case involving a different issue. A 61-year-old woman alleged a federal agency didn't hire her because of her age, contending the agency's recruitment through social media had a disparate impact on older workers because they use computers less. She lost on appeal to the EEOC, which agreed she lacked evidence. Lawyers advise employers not to confine recruitment to social media.

The co-worker police is another phenomenon lawyers are seeing that could implicate employees for social media postings. An overworked employee might see a vacation or skydiving photo of a colleague who's on medical leave, for example. Whether an employer should use that information depends on how it was obtained, Ms. Jackson tells clients. If it's publicly available, it's usable for an investigation but if a password is required it's not, she said, though she'd approve of a printout an employer receives of a private posting.

EEOC Commissioner Constance Barker, who previously represented businesses, said the agency should "be careful not to expand our jurisdiction" beyond laws it enforces such as Title VII of the Civil Rights Act.

She also suggested employees and job seekers should use more prudence. "I have a total lack of sympathy for all the people who blast their private lives on Facebook and other social media," she said.