6 ms·

Its as simple as "There are certain questions you can't ask during job interviews". Its been illegal to ask these questions for 20 years, and nearly no one disp

Its as simple as "There are certain questions you can't ask during job interviews". Its been illegal to ask these questions for 20 years, and nearly no one disputes this. A peak at the prospect's Facebook page answers all of them. This should be the biggest no-brainer in HR history.

Daniel_Newby 15y ago
All questions are legal to ask. What's illegal is discriminating on the basis of certain answers. The reason not to ask is to avoid being the target of a witch hunt. This is why competent background checks are conducted by a security officer who produces nothing but a list of disqualifications along with the factual evidence to back them up. ("The candidate appears to engage in the unlawful use of mind altering drugs. [Facebook photo of bong use attached.]")
- fleitz 15y ago
  You'd have to be a really shitty security officer to leap from bong to illegal drug use. There's a reason it's legal to sell bongs, because they have lots of other uses than illegal drugs. Also, many of the drugs used in bongs are legal to use in many different circumstances. The laws in Ontario are written this way to prevent exactly this sort of idiocy. That's why you don't even ask these things because it's irrelevant to the job. If illegal drug use doesn't disqualify the President of the United States from his job why should it exclude anyone else?
  - Drbble 15y ago
    Bongs ("drug paraphernalia") are in fact illegal in many jurisdictions.
  - VMG 15y ago
    > There's a reason it's legal to sell bongs, because they have lots of other uses than illegal drugs. Just out of curiousness - what do you mean?
    - halfasleep 15y ago
      Bongs can be used to smoke legal drugs, and there are a number of subtly different devices (like a shisha) for smoking tobacco.
    - EvilTerran 15y ago
      Setting aside tobacco ('cos, let's be honest, no-one smokes tobacco with a bong, regardless of what head-shops say), there's also "legal highs" - synthetic cannabis analogues (K2/Spice/etc) and Salvia, for instance. A lot of bongs are re-purposed chemistry apparatus, too. Not that having chemistry apparatus in your student flat is gonna look much better to a prospective employer than a bong. :P
- ryanbrunner 15y ago
  raganwald did specifically mention Ontario, where even asking the question is illegal. It's against the Ontario Human Rights code to ask any question on a written or oral application that classifies someone on a discriminatory ground. (IANAL, and this is not legal advice.)
- cdr 15y ago
  A quick google search will tell you that's flat out wrong - there are interview questions that are illegal to ask in pretty much the entire first world, pretty much anything directly pertaining to legally protected statuses/classes.
bostonpete 15y ago
Well, I don't think that point alone is all that compelling. People put all sorts of "off-limit question" info on their personal blogs too. Does that mean it would somehow be unethical or illegal to look at a prospective candidate's personal blog that turned up in a web search? While I would certainly not put up with a company asking for access to my private online content, it's not clear that it's illegal for them to do so just because it may contain information that can't legally be used to make a hiring decision.
- darxius 15y ago
  A private facebook profile is much different from a public blog. If you put something out there, you run the risk of someone stumbling over it.
- Foy 15y ago
  Blogs are published, and meant to be read by people. "Off limit" questions answered in a blog would be comparable to determing an applicant's race and gender in a face to face interview, unless I'm mistaken. Facebook, as seen from a logged in user's POV, is meant to be private. I think there is definitely a line being crossed when asking to snoop through their private lives. This is just my opinion.
- quanticle 15y ago
  The difference is that in this case the candidate knows you looked, and can testify under oath that you looked. To a court of law, that makes all the difference. You had the means and the opportunity, all that remains for the candidate to prove is motive.
InclinedPlane 15y ago
Precisely. I hope that there are some hungry lawyers out there smelling blood in the water 'cause this is easy stuff. In an interview you can't ask how old someone is, where they were born, what religion they are, and a zillion other things, all of which are blatantly plastered all over the average person's facebook profile.
tzs 15y ago
NOTE: I don't think employers should be allowed to ask for special access to a candidate's Facebook page. I'm not arguing for Facebook access below, but rather I'm arguing that I don't necessary think current law can be construed to prevent it. I'm not convinced that theory is correct. There's a difference between asking a prohibited question, and acquiring the answer to a prohibited question incidental to something else. To give an obvious example, you can't ask about race and sex, but the employer is going to find out that information at the face to face interviewer by simply observing the candidate. Or consider criminal background checks, which are allowed in some states. A criminal background check might turn up information that makes a candidate's sexual orientation, national origin, or religion apparent. I don't think that an employer would find themselves in legal trouble for doing a criminal background check that turned up that information, because they weren't doing the background check to acquire the prohibited information. As a practical matter, though, even if it is legal to look at Facebook, it is a bad idea. Suppose you do not hire a candidate, and the candidate sues claiming that you didn't hire them because of their marital status. During discover, the plaintiff finds some emails between employees containing disparaging remarks about people of his status. If you have not looked at Facebook or otherwise snooped into their private life, you will offer as part of your defense that you did not know their marital status, and so could not possibly have discriminated on that basis. Even if you do have some managers who dislike people of the plaintiff's status, they could not have acted on that dislike in this case. If you have snooped, then you no longer have that defense. You are in the much less desirable position of having to argue that your people (who have been caught disparaging people of plaintiff's status) did not use that information, even though they did have access to it. I can easily see this being the difference between a plaintiff win and a defendant win.
- jbri 15y ago
  What's illegal is discriminating against a candidate based on protected information. Knowing that information isn't illegal, but it opens you up to a discrimination lawsuit, because it's very difficult to prove that your decision wasn't motivated by that information. This is why background checks are usually done by third parties. A background check will inevitably find out information that you're not supposed to discriminate upon - having it done by a third party means that the people actually making the decision don't know that information. (And more important, you can prove that they didn't know it)
deleted 15y ago
[deleted]
reductionist 15y ago
> Its as simple as "There are certain questions you can't ask during job interviews". Its been illegal to ask these questions for 20 years, and nearly no one disputes this. It's not that simple. Facebook is not the only way a prospective employer could find out those details. For example, some jobs do thorough background checks (imagine, for a security position) that no one doubts the legality of, and you could answer many of those same questions that way too. If the prospective employer learns that info, they're simply expected to disregard it while making their hiring decision, the same as they'd be expected to if they learned that info from your PUBLIC facebook page (which again no one can doubt is legal to check). Stealing facebook login details does expose the company to greater liability claims in this regard, but merely uncovering those protected questions is not illegal. Instead I suggest approaching Facebook login theft as a case of tortious interference, and an invasion of privacy both for the stolen account owner and anyone on their friends list. Employment discrimination will both be hard to prove, and should be settled on a case by case basis rather than legislated out of existence.

Daniel_Newby 15y ago

All questions are legal to ask. What's illegal is discriminating on the basis of certain answers. The reason not to ask is to avoid being the target of a witch hunt. This is why competent background checks are conducted by a security officer who produces nothing but a list of disqualifications along with the factual evidence to back them up. ("The candidate appears to engage in the unlawful use of mind altering drugs. [Facebook photo of bong use attached.]")

fleitz 15y ago
You'd have to be a really shitty security officer to leap from bong to illegal drug use. There's a reason it's legal to sell bongs, because they have lots of other uses than illegal drugs. Also, many of the drugs used in bongs are legal to use in many different circumstances. The laws in Ontario are written this way to prevent exactly this sort of idiocy. That's why you don't even ask these things because it's irrelevant to the job. If illegal drug use doesn't disqualify the President of the United States from his job why should it exclude anyone else?
- Drbble 15y ago
  Bongs ("drug paraphernalia") are in fact illegal in many jurisdictions.
- VMG 15y ago
  > There's a reason it's legal to sell bongs, because they have lots of other uses than illegal drugs. Just out of curiousness - what do you mean?
  - halfasleep 15y ago
    Bongs can be used to smoke legal drugs, and there are a number of subtly different devices (like a shisha) for smoking tobacco.
  - EvilTerran 15y ago
    Setting aside tobacco ('cos, let's be honest, no-one smokes tobacco with a bong, regardless of what head-shops say), there's also "legal highs" - synthetic cannabis analogues (K2/Spice/etc) and Salvia, for instance. A lot of bongs are re-purposed chemistry apparatus, too. Not that having chemistry apparatus in your student flat is gonna look much better to a prospective employer than a bong. :P
ryanbrunner 15y ago
raganwald did specifically mention Ontario, where even asking the question is illegal. It's against the Ontario Human Rights code to ask any question on a written or oral application that classifies someone on a discriminatory ground. (IANAL, and this is not legal advice.)
cdr 15y ago
A quick google search will tell you that's flat out wrong - there are interview questions that are illegal to ask in pretty much the entire first world, pretty much anything directly pertaining to legally protected statuses/classes.

bostonpete 15y ago

Well, I don't think that point alone is all that compelling. People put all sorts of "off-limit question" info on their personal blogs too. Does that mean it would somehow be unethical or illegal to look at a prospective candidate's personal blog that turned up in a web search? While I would certainly not put up with a company asking for access to my private online content, it's not clear that it's illegal for them to do so just because it may contain information that can't legally be used to make a hiring decision.

darxius 15y ago
A private facebook profile is much different from a public blog. If you put something out there, you run the risk of someone stumbling over it.
Foy 15y ago
Blogs are published, and meant to be read by people. "Off limit" questions answered in a blog would be comparable to determing an applicant's race and gender in a face to face interview, unless I'm mistaken. Facebook, as seen from a logged in user's POV, is meant to be private. I think there is definitely a line being crossed when asking to snoop through their private lives. This is just my opinion.
quanticle 15y ago
The difference is that in this case the candidate knows you looked, and can testify under oath that you looked. To a court of law, that makes all the difference. You had the means and the opportunity, all that remains for the candidate to prove is motive.

InclinedPlane 15y ago

Precisely. I hope that there are some hungry lawyers out there smelling blood in the water 'cause this is easy stuff. In an interview you can't ask how old someone is, where they were born, what religion they are, and a zillion other things, all of which are blatantly plastered all over the average person's facebook profile.

tzs 15y ago

NOTE: I don't think employers should be allowed to ask for special access to a candidate's Facebook page. I'm not arguing for Facebook access below, but rather I'm arguing that I don't necessary think current law can be construed to prevent it. I'm not convinced that theory is correct. There's a difference between asking a prohibited question, and acquiring the answer to a prohibited question incidental to something else. To give an obvious example, you can't ask about race and sex, but the employer is going to find out that information at the face to face interviewer by simply observing the candidate. Or consider criminal background checks, which are allowed in some states. A criminal background check might turn up information that makes a candidate's sexual orientation, national origin, or religion apparent. I don't think that an employer would find themselves in legal trouble for doing a criminal background check that turned up that information, because they weren't doing the background check to acquire the prohibited information. As a practical matter, though, even if it is legal to look at Facebook, it is a bad idea. Suppose you do not hire a candidate, and the candidate sues claiming that you didn't hire them because of their marital status. During discover, the plaintiff finds some emails between employees containing disparaging remarks about people of his status. If you have not looked at Facebook or otherwise snooped into their private life, you will offer as part of your defense that you did not know their marital status, and so could not possibly have discriminated on that basis. Even if you do have some managers who dislike people of the plaintiff's status, they could not have acted on that dislike in this case. If you have snooped, then you no longer have that defense. You are in the much less desirable position of having to argue that your people (who have been caught disparaging people of plaintiff's status) did not use that information, even though they did have access to it. I can easily see this being the difference between a plaintiff win and a defendant win.

jbri 15y ago
What's illegal is discriminating against a candidate based on protected information. Knowing that information isn't illegal, but it opens you up to a discrimination lawsuit, because it's very difficult to prove that your decision wasn't motivated by that information. This is why background checks are usually done by third parties. A background check will inevitably find out information that you're not supposed to discriminate upon - having it done by a third party means that the people actually making the decision don't know that information. (And more important, you can prove that they didn't know it)

deleted 15y ago

[deleted]

reductionist 15y ago

> Its as simple as "There are certain questions you can't ask during job interviews". Its been illegal to ask these questions for 20 years, and nearly no one disputes this. It's not that simple. Facebook is not the only way a prospective employer could find out those details. For example, some jobs do thorough background checks (imagine, for a security position) that no one doubts the legality of, and you could answer many of those same questions that way too. If the prospective employer learns that info, they're simply expected to disregard it while making their hiring decision, the same as they'd be expected to if they learned that info from your PUBLIC facebook page (which again no one can doubt is legal to check). Stealing facebook login details does expose the company to greater liability claims in this regard, but merely uncovering those protected questions is not illegal. Instead I suggest approaching Facebook login theft as a case of tortious interference, and an invasion of privacy both for the stolen account owner and anyone on their friends list. Employment discrimination will both be hard to prove, and should be settled on a case by case basis rather than legislated out of existence.