Is sleuthing on media social websites acceptable practice when hiring employees?

By Ian Lim

Hiring and Firing in a World Dominated by Social Media World.  How social media is changing our hiring practices

Discrimination lawsuits on the rise

Top investment bank, Goldman Sachs, is facing a gender bias class action lawsuit filed in New York by a group of former employees. The ex-staffers allege that the bank pays women less, sexualizes them and undermines their success. They claim that the “boys’ club” provides a “hostile” culture towards women, where equivalent female vice presidents receive 21% less pay than their male counterparts, and are 23% less likely to be promoted. “The record overwhelmingly demonstrates that year after year Goldman continues to treat women as second-class employees, permitting a culture of fear and retaliation to flourish rather than fixing known, systemic gender bias,” court papers said.

US retailer Abercrombie & Fitch, known for its topless male salesmen with six-pack abs, was sued for race discrimination because it allegedly denied a Muslim teenager a job as she was wearing a Muslim headscarf. The teen says the manager marked “not Abercrombie look” on the interview form. The US Supreme Court ruled, in an 8-1 decision, earlier this month, that employers cannot refuse to hire applicants who need special accommodations for their religious beliefs.  

The law in the US and the EU

Employers in the US and EU are not legally permitted to ask job applicants about many of their personal particulars. These include: age, religion, health or disability, gender, sexual orientation, number of family members, association membership, pregnancy, office dating, smoking, alcohol consumption. They also cannot take any of these factors into account when firing employees. 

HR practices have thus developed so that employers only ask politically correct questions. Several websites provide advice on the questions you shouldn’t ask, and suggest politically correct alternatives. For example, “What is your religion?’ is taboo, but you can ask “What days are you available to work?” if work scheduling is a concern.  Similarly, asking “If you get pregnant, will you return after maternity leave” is gender discriminatory, so employers should skirt around the issue by discussing “long-term career goals”. Soliciting views on office dating can be marital status discriminatory or even amount to sexual harassment.

Whither Singapore?

Singapore laws afford significantly less legal protection for job applicants and employees.  Certain discriminatory practices are prohibited. For example, the Enlistment Act prohibits employers from dismissing employees by reason of their being called up for national service.  The Employment Act and Child Development Co-savings Act restrict when and how employers may dismiss pregnant female staff. 

Faith Community Baptist Church made headlines when it was directed by Singapore’s Ministry of Manpower (MOM) to pay about S$7,000 to its former married employee who was dismissed without compensation seven months into her pregnancy. The church based its decision on the employee’s alleged adulterous relationship which it felt was contrary to the standard of conduct expected of a church employee, especially one involved in explaining Christian teachings and values to prospective couples. The MOM’s view was that employment should be ‘non-religious’. The church recently decided to withdraw its application for judicial review of MOM’s decision. 

While there is no overarching law prohibiting discrimination in Singapore, the position is changing.

The Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) which works in partnership with employer organisations, unions and the government to facilitate the adoption of fair, responsible and progressive employment practice, has recently issued the Tripartite Guidelines on Fair Employment Practices. These Guidelines state that information about age, date of birth, gender, race, religion, marital status and family responsibilities should not be asked for in relation to job applications. Job advertisements should not contain criteria such as ‘male preferred’, ‘below [x] years of age preferred’, ‘only singles needed’.  While these guidelines are non-binding, they shape industry practice. Furthermore, TAFEP offers feedback and complaint channels to affected individuals.  Material failure to comply with these Guidelines may result in MOM and other government agencies placing the employer under scrutiny.  Such failure can also be considered by MOM in relation to its decision to issue employment passes or work permits. 

What’s an employer to do?

Most employers do not consciously set out to be discriminatory. Some of the questions which are deemed discriminatory have a very real impact on hiring policies. Whether a female candidate is likely to take maternity leave in the short term, for example. Or whether a physical disability is likely to slow down a potential candidate’s job performance. 

In this environment of enhanced wariness, there is an increasing pressure on human resource managers to seek their information elsewhere.

Social media is their new hunting ground. 

It has become standard operating procedure to screen the social media profiles of interviewees. Facebook rants, casual tweets and indiscreet photos uploaded to Instagram are rich fodder for prying employers. If an employer cannot ask about a candidate’s social life, because this is deemed discriminatory, he may well resort to finding out about the interviewee’s penchant for binge drinking from his social media updates. We all know the damage that a post or photograph, taken out of context can do. 

While Saw Phaik Hwa was CEO of SMRT, she very gamely dressed up as Cleopatra for a company function, and was photographed being carried on a sedan chair by 4 colleagues also dressed in costume. This picture was unfairly used by netizens, who took it out of context, to criticise her.  

Last May, an applicant who received two job offers from Zenefits and Uber, crowd sourced advice from Q&A forum Quora on which offer to accept. One comment, that Zenefits “isn’t a buzzword like Uber”, was apparently too much for Zenefits’ CEO who withdrew the job offer.  

Let’s be clear. Employers have the right to do due diligence on potential employees, and information and images voluntarily uploaded by the candidate in question, is fair game. After all, he could have selected a higher privacy setting or simply refrained from uploading sensitive data.

But as an employee, wouldn’t you rather be asked an inappropriate question, and be given a chance to address the issue head on, than to have something you posted in cyberspace held against you without the right of reply? Even if no laws have been broken, surely some sense of natural justice has been offended.

While it is important to take a tough stance against all types of discrimination, the current environment of enforcement using an increasingly thick rulebook has led to the development of political correctitude that may be counter-effective. Yes, let’s fight unfair discrimination. But pussy-footing around personal questions isn’t the way to do it.  


TSMP law corporation