THE EMPLOYERS' EDGE
Ontario Human Rights Commission: Requesting Facebook Passwords as Part of the Recruitment Process May be Discriminatory
In response to a growing trend of employers asking prospective employees for their login information for personal social media sites such as Twitter and Facebook, the Ontario Human Rights Commission has weighed in on the issue and advised employers that this practice may be discriminatory and offside human rights legislation.
On March 23, 2012, the Ontario Human Rights Commission posted on its Facebook page that employer requests for login information to social media sites such as Facebook may be in contravention of section 23(2) of the Human Rights Code (“Code”). Specifically, section 23(2) prohibits employers from asking questions that directly or indirectly classify or indicate qualifications on fourteen prohibited grounds of discrimination, including race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. Relying on this section, the Commission’s view is that a Facebook profile could include direct and indirect information on any or all of the prohibited grounds listed above since information of this nature could be available as text or inferred from pictures posted on Facebook.
The Commission’s stated view is that, “Employers should not ask job applicants for access to information stored on social media or other online sites and that doing so could leave an employer open to a claim of discrimination under the Code.”
An employer’s request for a job applicant’s Facebook password may also raise privacy considerations. This concern prompted Facebook to issue a statement on March 23, 2012 advising that its users should not be forced to share private information or communications in order to gain employment. Further, according to Facebook, it is a violation of its user agreement to share or solicit a Facebook password. If this information is revealed to a potential employer, he or she may inadvertently have access to the Facebook profiles of “friends” of the user, who have not consented to or authorized their personal information to be shared with the employer requesting the Facebook password. Facebook has now threatened to take legal action against any employer who asks for an applicant’s login information, as it is a direct violation of the user’s agreement with Facebook.
These new developments highlight the growing importance employers are placing on social networking sites, such as Facebook and Twitter, to access and collect information regarding job applicants. Although the jury is still out on the question of whether this practice is permissible, employers are advised to tread carefully in this area for the following reasons:
Requesting a prospective employee’s Facebook password may expose employers to claims of discrimination under the Code if an employer accesses and collects information contained on a Facebook page, and utilizes information relating to a prohibited ground of discrimination in determining whether or not to hire a job applicant.
Federally-regulated organizations may face potential privacy complaints under the Personal Information Protection and Electronic Documents Act (PIPEDA) if it collects “more information than is necessary” related to an employment undertaking. Requesting a job applicant’s Facebook password may arguably fall within this category, and expose federally regulated employers to legal liability.
Following the landmark decision of Jones v. Tsige, 2012 ONCA 32, (please see our Blog from January 20, 2012) the Ontario Court of Appeal has confirmed there is a new privacy tort based on the principle of “intrusion upon seclusion”. A plaintiff can seek damages in an Ontario court if he or she can establish that their privacy was invaded without just cause. In light of this new privacy tort, employers may also face potential damages if an individual alleges a breach of their privacy rights following a request from an employer for their Facebook password.
Should you have any questions regarding the above, or wish to learn more about this emerging issue for your workplace, please do not hesitate to contact any of our lawyers at CCP.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.