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Are Employers Violating Civil Rights Laws by Requesting Your Facebook Password?

A civil right is an enforceable right or privilege, which if interfered with by another gives rise to a cause of action. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places. Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class. Various jurisdictions have enacted statutes to prevent discrimination based on a person’s race, sex, religion, age, physical limitation, and national origin.

The Stored Communications Act 18 U.S.C. § 2701 “protects users whose electronic communications are in storage with an internet service provider or ‘ISP’ or other electronic communications facility.”

Today, many employers are requiring its job applicants and employees to provide unprecedented access to their private personal Facebook accounts.  Quite frankly, this sort of access creates all sorts of potential legal problems for the employers.

According to the EEOC, as a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.

An employer may not base assignment and promotion decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

What if a job applicant’s employment application is denied after the employer viewed his private personal Facebook profile?

What if an employee is denied a promotion after the employer viewed her private personal Facebook profile?

The question becomes, whether the employer’s inquiry on the private personal Facebook profile of the job applicant or employee was limited to accessing information relevant to determining if such person is qualified for the job.

That becomes an open question…

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