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To Google or Not to Google, An Employer's Dilemma

The Internet is a revolutionary tool that provides an Employer with a unique new method to evaluate a prospective employee. This freedom to access information through social media and other websites has sparked new lawsuits that are changing the dynamics of Employment Law litigation as it relates to discrimination, retaliation, civil rights and other employee rights.

Gaskell v. University of Kentucky, is a lawsuit that demonstrates that litigation can develop when an employer uses Google to evaluate a prospective employee and considers the role of religious discrimination in making a determination to hire or not hire an prospective employee. In Gaskell, a prospective employee was being considered for a position as a Director for an astronomy observatory at the University of Kentucky. Although Gaskell was highly qualified, he alleged that he was passed over for the position based on his religious faith in violation of Title VII of the Civil Rights Act of 1964, thus he hired an attorney and filed a lawsuit. In other words, he alleged that he was being discriminated against on the basis of his religion, which is illegal. Specifically, he alleged that when the University googled him, they came across an article titled 'Modern Astronomy, the Bible and Creation,' and this article proved alarming to the employer since it voiced a creationist ideology that clashed with the University's teaching of Evolution. Although Gaskell's summary judgment motion was partially denied after the Court found that the mixed motivation exception applied, Gaskell was still able to settle his claim with the University for $125,000.00. Thus, Gaskell was compensated for his allegations that he was subject to religious discrimination.

This lawsuit illustrates that conducting background checks on employees through the use of search engines may prove dangerous if the information found demonstrates the employee is in a protected class on the basis of their age, race, sex national origin, disability, marital status, sexual orientation, and there is a nexus between that protected class and the decision not to hire the individual. Although these forms of lawsuits are relatively new developments in the United States, legislature in European countries have already acted in response to potential employer discrimination via the Internet, and lawyers in the United States and New York are always looking for innovative ideas to create favorable law for their clients. For example, Finland prohibits employers from searching potential applicants on the Internet, and lobbyists in the United Kingdom seek a similar prohibition there. The aforementioned cases and trends demonstrate the dangers of googling a prospective employee, but what about the potential dangers of failing to google a prospective employee?

In recent years there has been an expansion of litigation stemming from negligent hiring. Negligent hiring results from an employer's failure to conduct an adequate background check on a prospective employee who subsequently acts in a manner to commit a wrongful act against a fellow employee or a third party. This wrongful act could be in the form of discrimination, harassment, defamation, failure to pay minimum wages or overtime or retaliation. An employer's failure to utilize a social media site to evaluate the prospective employee could also result in the employee hiring an attorney which can lead to costly litigation and liability for the employer. This leaves us with the question, what should an employer do, to google or not to google that is the question.

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