Written Testimony of Carol R. Miaskoff Acting Associate Legal Counsel

Meeting of March 12, 2014 - Social Media in the Workplace: Examining Implications for Equal Employment Opportunity Law

Good morning, Madam Chair and Commissioners. I will discuss social media and some of its uses at work; pertinent state and federal legislation; EEOC federal sector decisions and observations by EEOC Program Analysts around the country; and, finally, EEOC letters about social media and EEO law.

What is Social Media?

There are many definitions of "social media" and, as may be appropriate for a burgeoning and creative area, no authoritative one. One way to start defining "social media" is to consider each word. The term "media" means modes of electronic communication, typically now reliant on the Internet; "social" means that these media provide channels for easy back-and-forth between people.

Another way to define social media is to contrast it with traditional media like newspapers, television, and standard websites. The latter are like one-way streets: information is pushed out by one party and read or viewed by another. You can read a story in the Sunday paper, watch the news, or listen to a morning talk show, but aside from discussing it with a colleague, friend, or family member, the average person would have limited means to add her own thoughts and almost no ability to broadly disseminate her views.

Social media, by contrast, does not only provide information: it allows you to quickly interact about the information and circulate your views (for example, by simply clicking on "Like" for an entry on your Facebook newsfeed). This ease of interaction is magnified by the ubiquity of smart phones and tablets that provide mobile online access to many people, most of the time.¹ While the term "social media" continues to include "social networks" like Facebook and LinkedIn, as well as blogs or micro-blogs (like Twitter), it also includes media sharing sites (Vine, Pinterest); document-sharing sites like Google+; music-sharing tools (Spotify); social gaming sites; sites that transmit and then self-destruct images or video (Snapchat) or text messages (Confide); and last but not least, texting.

The scale of social media is tremendous. Approximately 350 million photos are uploaded to Facebook every single day,² and approximately 500 million tweets are sent each day.³ As a major channel for communication, social media is used personally by employees and institutionally by employers. One source, for example, reports that 37% of employers use social media to screen potential job candidates. It also states that 34% of employers who scan social media find content that causes them not to hire a candidate.⁴

There are two themes behind my testimony today: first, that technology changes faster than the law; and, second, that when an employer or other entity is covered by the EEO laws, their recruitment, selection, and employment decisions and activities are subject to the EEO laws, regardless of the media they happen to use.

State and Federal Activity Relating to Social Media and the Workplace

State Laws and Proposed Legislation

The most direct response to employer use of social media to screen applicants and employees has been the introduction of state legislation to prevent employers from requiring access to personal accounts on social media websites.⁵ In 2012, four states -- California, Illinois, Maryland, and Michigan -- enacted legislation to prohibit an employer from requesting or requiring an employee or applicant to disclose a user name or password and permit access to personal social media accounts.⁶ The laws enacted in California, Maryland, and Michigan further prohibit an employer from discharging, disciplining, or otherwise penalizing an employee or applicant for failing to comply with the employer's request.⁷

In 2013, nine states -- Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington -- similarly enacted legislation to prohibit employers from requesting or requiring employees and applicants to provide account information in order to gain access to personal social media accounts.⁸ Currently, new legislation or amendments to previously enacted legislation to prohibit employers or academic institutions from seeking to access social media websites has been introduced or is pending in at least 26 states.⁹

Federal Legislation

There also was legislative action in 2013 at the federal level, with the introduction of two different pieces of legislation. On February 6, 2013, Representatives Eliot Engel (D-N.Y.), Jan Schakowsky (D-IL), Michael Grimm (R-N.Y), and several other co-sponsors reintroduced the Social Networking Online Protection Act ("SNOPA"), which seeks to prohibit employers from requiring or requesting that employees and job applicants provide their user names, passwords or other information needed to access personal accounts on social media websites.¹⁰ SNOPA would further prohibit employers from discharging, disciplining, or discriminating against any employee or job applicant who refuses to provide such information, files a complaint, or testifies in any proceeding under the Act.¹¹ Potential remedies for violations of SNOPA include civil penalties of up to $10,000 and injunctive relief.¹² On April 23, 2013, the bill was referred to three House Subcommittees for further consideration.¹³

One month after SNOPA was introduced, in May 2013, Representative Ed Perlmutter (D-CO) and thirty-eight co-sponsors introduced the Password Protection Act of 2013, which would make it illegal for employers to compel or coerce employees or job applicants to provide employers with passwords or similar information through which a computer may be accessed.¹⁴ The Act also would prohibit employers from discharging, disciplining, or discriminating against employees or job applicants for refusing to provide such information, filing a complaint, or testifying in any proceeding under the Act.¹⁵ On June 14, 2013, the bill was referred to the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigations for further consideration.¹⁶ On August 1, 2013, Senator Richard Blumenthal (D-CT), Senator Charles E. Schumer (D-N.Y.), and five other co-sponsors introduced a similar bill in the Senate.¹⁷

The National Labor Relations Board

Finally, the National Labor Relations Board ("NLRB") has been active in monitoring social media policies and employee discipline for violations of Section 7 of the National Labor Relations Act ("NLRA"), which guarantees employees the right to organize and engage in other protected activity, such as discussing terms and conditions of employment.¹⁸ In 2010, the NRLB began receiving charges related to employer social media policies and employee discipline resulting from Facebook postings.¹⁹ The NLRB's investigations led to the issuance of a series of decisions and memoranda stating that the NLRA protects an employee's right to post comments on social media websites related to wages and working conditions or to engage in "protected concerted activity," such as discussing terms and conditions of employment with fellow employees.²⁰ The NLRB has found, however, that an employee's comments on social media are generally not protected if they are "mere gripes not made in relation to group activity among employees" and that disciplinary actions resulting from such minor comments do not violate the NLRA.²¹

EEOC Statements Pertaining to Social Media

Like the NLRB, the EEOC's own statements on social media have come in response to specific inquiries or factual circumstances. There are a few EEOC federal sector decisions and also EEOC written responses to letters from stakeholders asking about particular technologies. In addition, our field offices grapple with these issues in their daily work.

EEOC Federal Sector Decisions

In the federal sector, the EEOC has decided appeals of final agency decisions where the allegations involved the use of social media by co-workers or the employing department or agency.

In Knowlton v. Department of Transportation (Federal Aviation Administration),²² Complainant, an air traffic controller, asserted that he was subjected to an unlawful hostile work environment based on race and sex, and in reprisal for prior protected activity. He alleged that, after making an office "food run" to Chick-fil-A, one of his co-workers posted on Facebook that "he [emphasis added] 'would make the next food run to a racist restaurant and see if his Black a** wants to complain. If he does, I will laugh in his face.'"²³ Complainant, who did not have a Facebook page, apparently heard about the posting and, although he never discussed it with the alleged harasser, it was later "inferred" that the harasser was upset about the choice of Chi[ck]-fil-A . . . because "it is allegedly an anti-gay establishment."²⁴ Complainant also alleged that after this Facebook posting, he began a period in which he was "uncomfortable" in the workplace.²⁵ Separately, Complainant asserted that his regular FAA trainer (who was friendly with the alleged harasser) reassigned Complainant to a new trainer under whom Complainant "struggled" and was "hounded" and "mocked."²⁶

The agency dismissed this complaint for failing to state a claim, but, on appeal, the EEOC reversed. The EEOC stated that, if all of Complainant's allegations were considered together, they "are reflective of an actionable claim of harassment" and that Complainant stated a cognizable claim.²⁷ This case is significant because it acknowledges that a social media posting by a co-worker may contribute to the creation of an unlawful hostile work environment. However, since this is a procedural decision and EEOC remands the case to the agency for processing, the facts only reflect the initial allegations.

In another federal sector appeal, Reese v. Department of the Interior (National Park Service),²⁸ Complainant alleged that she was not selected for a Park Ranger position due to her age (61) and sex (female). Complainant asserted that the agency's recruitment of younger people for this position through Facebook and other social media put older workers at a disadvantage, because they use computers less often than younger people, and therefore using social media had a disparate impact on workers protected by the Age Discrimination in Employment Act ("ADEA").²⁹ In a hearing, the AJ found that Complainant did not establish a prima facie case of disparate impact and therefore failed to allege unlawful discrimination in this respect. On appeal, the EEOC affirmed the AJ because Complainant had not put forth evidence of disparate impact or a preference for younger applicants linked to the agency using social media for recruitment.³⁰

Office of Field Programs / EEOC Outreach

Anecdotal reports from EEOC field offices are consistent with the subject matter of these federal sector appeals. EEOC field offices are familiar with fact patterns in which the alleged harasser uses text messages to communicate the objectionable comments or statements. The field offices also are familiar with instances in which individuals use social media to complain about or report harassment, and then experience criticism or attacks over social media for doing so. Finally, EEOC field offices staff members have seen situations in which people allege disparate application of social media policies: for example, a woman alleged that she was terminated for violating the employer's social media policy, but a man who violated the same policy was not.

Many of EEOC's Technical Assistance Programs (employer outreach) in the last year have included presentations about social media, particularly questions around obtaining social media passwords from applicants or employees. Many EEOC offices also include cautionary tales about social media in their Youth Outreach events, for example, telling a story of a man who lost his job because he called in sick but posted on Facebook that he was at the beach.

Later today, Rita Kittle of EEOC's Office of General Counsel will discuss discovery issues involving social media in EEOC litigation.

EEOC Letters

EEOC letters to stakeholders also are a source of the agency's statements about social media. For purposes of this meeting, the most relevant EEOC letter is the agency's May 2012 written response to an inquiry from Senator Charles E. Schumer and Senator Richard Blumenthal about the EEO ramifications of news reports "that some employers are requiring job applicants to provide their usernames and passwords to social networking sites like Facebook as part of the hiring process."³¹ In their original March 25, 2012 inquiry, the Senators expressed concern that this practice would give employers easy access to information that they must not consider when screening job applicants, such as the applicant's religious views, national origin, family history, age, or other protected status. Indeed, the Senators offered the view that such practices "may simply be a pretext for discrimination" or otherwise "violate current federal law."³²

The agency responded by letter dated May 15, 2012. Acknowledging that the EEO laws do not address the legality per se of requesting and using social network passwords,³³ the EEOC response reiterated that covered employers must not use personal information from social networks to make employment decisions on a prohibited basis, be it race, color, religion, national origin, sex, age, disability, or protected genetic information.³⁴ For example, the letter explained, rejecting an applicant because he is Muslim, as disclosed through social media postings, would violate Title VII of the Civil Rights Act of 1964, as amended ("Title VII").³⁵ Similarly, rejecting an individual with a family history of breast cancer, as shown in the caption to a photo of her completing the "Race for the Cure" in memory of her sister "who lost her battle with this horrible disease," would violate the Genetic Information Nondiscrimination Act ("GINA").³⁶ Finally, screening out an applicant because her Facebook page has photos of her 50th birthday celebration, would violate the ADEA.

In their March 2012 inquiry, Senators Schumer and Blumenthal also commented that requesting or using social media passwords could be an EEO violation if it were used as a pretext for discrimination. The question of whether any action -- including requesting a social media password -- is a pretext for unlawful discrimination would arise as a factual determination under the McDonnell Douglas Corporation v. Green³⁷ framework for analyzing circumstantial evidence of disparate treatment. I am not aware at this time of any court decisions analyzing a fact pattern in which requesting a social media password is alleged to be a pretext for discrimination.

That said, the EEOC's May 2012 response to Senators Schumer and Blumenthal also discussed another important topic: pre-employment inquiries about protected status. The laws enforced by the EEOC have differing approaches to this issue. Title VII and the ADEA do not explicitly prohibit questions about race, gender, national origin, religion, or age 40 or above, but if an EEOC investigation shows that an employer inquired about these matters, the EEOC will assume that the employer considered the information relevant to its employment decision and will scrutinize the facts closely. By contrast, GINA and Title I of the Americans with Disabilities Act (ADA)³⁸ explicitly provide that making a pre-employment disability-related inquiry, or requesting or requiring genetic information, constitute independent statutory violations subject to certain conditions and exceptions.³⁹

Significantly, requesting a social media password would not, in itself, be either a prohibited disability-related inquiry⁴⁰ or a request for genetic information. However, GINA would prohibit an employer from searching an applicant's social media page with the intent of inquiring genetic information, including family medical history, and the ADA would prohibit a similar search to find information about disability.⁴¹

Over the last ten years, the EEOC has posted informal discussion letters responding to inquiries about how the EEO laws may impact employers' use of a variety of online tools. Some of these informal letters articulate basic principles of EEO law that are applicable to social media, just as they are to other technologies. For example, a January 19, 2006 informal discussion letter⁴² responds to a question about electronic recordkeeping and the EEOC's recordkeeping rules for the ADEA,⁴³ Title VI, and the ADA.⁴⁴ It says that electronic recordkeeping will meet these regulatory requirements as long as it "captures and retains all information contained in documents." This would include electronically preserving handwritten notations on printed documents, for example. By extension, the ADEA, Title VII, and ADA recordkeeping rules also apply to social media communications involving, for example, job applications or requests for reasonable accommodation. Electronic records of these applications or requests should capture all the information that is posted or communicated.

In conclusion, a September 21, 2010 informal discussion letter about video resumes reiterates the theme of this testimony: that "[t]he EEO laws do not expressly prohibit the use of specific technologies . . . The key question under the EEO laws is how the selection tools are used."⁴⁵ The answer to this question is starting to emerge as administrative bodies and the courts issue decisions based on specific fact patterns.

This concludes my testimony. Thank you.

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Footnotes

¹ Maeve Duggan & Aaron Smith, Cell Internet Use 2013, PEW RESEARCH CENTER, at 2 (Sept. 16, 2013), http://www.pewinternet.org/files/old-media//Files/Reports/2013/PIP_CellInternetUse2013.pdf ("Nearly two-thirds (63%) of cell phone owners now use their phone to go online . . . . Because 91% of all Americans now own a cell phone, this means that 57% of all American adults are cell internet users. The proportion of cell owners who use their phone to go online has doubled since 2009.").

² Cooper Smith, Facebook Users are Uploading 350 Million New Photos Each Day, BUSINESS INSIDER (Sept. 18, 2013), http://www.businessinsider.com/facebook-350-million-photos-each-day-2013-9.

³ Raffi Krikorian, New Tweets Per Second Record, and How!, TWITTER (Aug. 16, 2013), https://blog.twitter.com/2013/new-tweets-per-second-record-and-how.

⁴ Jacquelyn Smith, How Social Media Can Help (or Hurt) You in Your Job Search, FORBES (Apr. 16, 2013), http://www.forbes.com/sites/jacquelynsmith/2013/04/16/how-social-media-can-help-or-hurt-your-job-search/.

⁵ These laws typically are not introduced as amendments to the nondiscrimination laws.

⁶ See Employer Access to Social Media Usernames and Passwords: 2012 Legislation, NAT'L CONFERENCE OF STATE LEGISLATURES (Jan. 17, 2013), http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords.aspx. California, Delaware, Michigan, and New Jersey also enacted legislation prohibiting academic institutions from requiring students or applicants to disclose passwords or other related account information in order to gain access to social media websites. Id.

⁷ See id.

⁸ See Employer Access to Social Media Usernames and Passwords: 2013 Legislation, 2014 Legislation, NAT'L CONFERENCE OF STATE LEGISLATURES (Feb. 21, 2014), http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx. Arkansas, Illinois, New Mexico, and Oregon also enacted legislation prohibiting academic institutions from requiring students and applicants to disclose passwords or other related account information in order to gain access to social media websites. Id. Vermont passed a law establishing a committee to study the issue of prohibiting employers from requiring employees or applicants to provide access to their personal social media websites. Id.

⁹ These states include California, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, West Virginia, Wyoming, and Wisconsin. Id.

¹⁰ Social Networking Online Protection Act, H.R. 537, 113th Cong. § 2(a) (2013). Representative Engel previously introduced SNOPA on April 27, 2012, but it was never enacted. See Social Networking Online Protection Act, H.R. 5050, 112th Cong. (2012).

¹¹ H.R. 537, § 2(a).

¹² Id. § 2(b). SNOPA would also apply to schools and universities. Id. §§ 3-4.

¹³ The bill has been referred to the Subcommittee on Workforce Protections, the Subcommittee on Higher Education and Workforce Training, and the Subcommittee on Early Childhood, Elementary, and Secondary Education. See Social Networking Online Protection Act, H.R. 537 (2013), available at http://thomas.loc.gov/cgi-bin/bdquery/D?d113:1:./temp/~bdgQxR:@@@L&summ2=m&|/home/LegislativeData.php| (last visited Mar. 11, 2014).

¹⁴ Password Protection Act of 2013, H.R. 2077, 113th Cong. § 2 (2013).

¹⁵ Id.

¹⁶ See Password Protection Act of 2013, H.R. 2077 (2013), available at http://thomas.loc.gov/cgi-bin/bdquery/D?d113:1:./temp/~bdwzYC:@@@L&summ2=m&|/home/LegislativeData.php| (last visited Mar. 11, 2014).

¹⁷ Password Protection Act of 2013, S. 1426, 113th Cong. (2013).

¹⁸ 29 U.S.C. § 157.

¹⁹ See Fact Sheet: The NLRB and Social Media, NAT'L LABOR RELATIONS BD., https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/the-nlrb-and-social-media (last visited Mar. 11, 2014).

²⁰ Id. See also Nat'l Labor Relations Bd, OM 12-59, Report of the Acting General Counsel Concerning Social Media Cases (May 30, 2012); Nat'l Labor Relations Bd, OM 12-31, Report of the Acting General Counsel Concerning Social Media Cases (Jan. 24, 2012); Nat'l Labor Relations Bd, OM 11-74, Report of the Acting General Counsel Concerning Social Media (Aug. 18, 2011). For more information on the three memos issued by the NLRB's Acting General Counsel, refer to https://www.huntonlaborblog.com/wp-content/uploads/sites/14/2011/09/NLRB_Provides_Guidance_For_Social_Media1.pdf.

²¹ Id.

²² EEOC Appeal No. 0120121642, 2012 WL 2356829 (June 15, 2012).

²³ Id.

²⁴ Id.

²⁵ Id.

²⁶ Id.

²⁷ Id.

²⁸ EEOC Appeal No. 0120122339, 2012 WL 5901116 (Nov. 15, 2012).

²⁹ 29 U.S.C. § 621 et seq.

³⁰ Reese, EEOC Appeal No. 0120122339.

³¹ Letter from Senator Charles E. Schumer & Senator Richard Blumenthal, United States Senate, to Jacqueline A. Berrien, Chair, U.S. Equal Emp't Opportunity Commission (Mar. 25, 2012) (on file with the U.S. Equal Emp't Opportunity Commission).

³² Id.

³³ The specific question of whether employers are prohibited from requiring or requesting social media passwords is the subject of numerous state laws concerning social media as well as federal legislation that was introduced earlier this congressional session. These laws and legislation are summarized in a prior section of this testimony.

³⁴ See Letter from Todd A. Cox, Director, Office of Communications and Legislative Affairs, U.S. Equal Emp't Opportunity Commission, to Senator Charles E. Schumer, United States Senate (May 15, 2012), (on file with the U.S. Equal Emp't Opportunity Commission) [hereinafter Schumer response].

³⁵ 42 U.S.C. § 2000e et seq.

³⁶ 42 U.S.C. § 2000ff et seq.

³⁷ 411 U.S. 792 (1973).

³⁸ 42 U.S.C. § 12101 et seq.

³⁹ See 42 U.S.C. § 12112(d); 42 U.S.C. § 2000ff-1(b).

⁴⁰ The EEOC's May 15, 2012 response explained: "Before the employment offer, employers also may not ask questions that are likely to result in answers containing disability-related information. If there are many possible answers to a question, only some of which would reveal information about a disability, the question is not disability related even if a particular applicant discloses information about a disability in response to it. Requiring all applicants to provide personal login information for their social media sites would not amount to a disability-related inquiry, even if information on a particular applicant's site indicated that she had a disability, because social media websites provide a variety of personal information only some of which may involve disability." Schumer response, at 2-3.

⁴¹ Id.

⁴² Letter from Peggy R. Mastroianni, Associate Legal Counsel, U.S. Equal Emp't Opportunity Commission, Title VII/ADA/ADEA: Recordkeeping (Jan. 19, 2006), http://www.eeoc.gov/eeoc/foia/letters/2006/titlevii_ada_adea_recordkeeping.html.

⁴³ 29 C.F.R. § 1627, Subpart B.

⁴⁴ 29 C.F.R. § 1602, Subpart C.

⁴⁵ Letter from Carol R. Miaskoff, Assistant Legal Counsel, U.S. Equal Emp't Opportunity Commission, ADA, GINA, Title VII & ADEA: Video Resumes (Sept. 21, 2010), http://www.eeoc.gov/eeoc/foia/letters/2010/ada_gina_titlevii_video_resumes.html (quoting Race and Color Compliance Manual Section 15).