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This is in response to Searching for Candidate Information.

Tuesday, February 2, 2010
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The article was very interesting, and gave rise to a question. Referring to this statement from the article: "Therefore, searching an applicant's Facebook page may disclose that an applicant is gay or a lesbian (protected under Title VII) ... ."

I was not aware that someone's sexual orientation, which has nothing to do with their gender/sex, is protected under Title VII. Can you point me to some case law that says otherwise?

Thanks for your kind attention. 

Mark Muller

Schwegman, Lundberg & Woessner

Keisha-Ann responds:

To clarify, Title VII's prohibition of discrimination on the basis of sex does not protect sexual orientation, however, this does not preclude a homosexual individual from bringing a sex-discrimination claim under Title VII. 

Title VII does protect discrimination based on sex-stereotyping, which requires an individual to prove that he/she was discriminated against for failing to conform to social expectations of how a woman or a man should look and behave. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Therefore, for example, if a gay man can demonstrate that he was not hired because he acted or dressed too feminine, or a lesbian woman can demonstrate that she was not hired because she acted or dressed too masculine (information which an employer can acquire on sites such as Facebook, and MySpace by reviewing an applicant's video and photograph postings), these individuals may have a sex-discrimination claim under Title VII. See generally Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002); Miller v. City of New York, 2006 U.S. App. LEXIS 10730 (2d Cir. 2006).

In addition to the protections that Title VII may provide to homosexual individuals, several state laws offer even broader protection by specifically prohibiting discrimination based on sexual orientation.

These states include California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Wisconsin and the District of Columbia. See Cal Gov't Code § 12920; Con. Gen. Stat. § 46a-81a; Haw. Rev. Stat. § 378-2; Md. Code Ann. § 20-601; Mass. Gen. Laws ch. 151B, § 3; Minn. Stat. § 363A.02; Nev. Rev. Stat. § 613.330; N.H. Rev. Stat. Ann. § 354-A:1; N.J. Rev. Stat. § 10:5-3; N.M. Stat. Ann. § 28-1-7; N.Y. Exec. Law § 296; R.I. Gen. Laws § 28-5-7; Vt. Stat. Ann. § 495; Wis. Stat. § 111.31; D.C. Code Ann.§ 2-1401.01.

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My heartiest thanks for such a cogent explication of the dangers of using Facebook for screening ... very tough message to get understood, in my experience, and having your article to point to is great validation when I'm trying to make the point.  

As a privacy practitioner and writer, my focus is on nonprofits, as fundraising offices are the soft underbelly of data-theft-targeting; but in the desire of stretching every nickel, nonprofit's HR offices are also likely to resort to "Facebook/Google Screening" and need to be warned away from "worst practices."

David Schulz, CIPP

Certified Information Privacy Professional

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