The biggest concern: Users of social networking sites are primarily Caucasians age 20-40. For example, on LinkedIn, only 4% of users are African-American, and just 2% are Hispanic, according to the latest data from Quantcast.

As with all social networking sites, usage declines in older demographics.

Recruiting on those sites can cause problems, says attorney Pamela Devata in Workforce, because it could have a disparate impact on groups without a large social networking presence.

That may be especially true with LinkedIn, which lets users create online connections with people they know. They can then find other people by seeing their contacts’ contacts, their contacts’ contacts’ contacts, etc.

The problem is, finding candidates that way could leave HR with a very homogeneous group.

What’s the danger?

Not all HR experts have the same concern about social networking. As many of those who’ve commented on the story point out, the same complaints can be made about a lot of traditional recruiting strategies. For example, most newspaper readers are white, so therefore recruiting via classified ads could have a disparate impact.

The same goes for referrals, a time-tested hiring strategy. In 2004, an employer was sued by a group of minority applicants who claimed the company’s referral practices were biased.

Nearly all new hires were referred by current employees. Nearly all of the referred applicants were white. The company tried having the case tossed on the grounds that it was just choosing from the applicant pool made available. But the judge refused, ruling that hiring only through referrals had a disparate impact on some groups of applicants (Cite: EEOC v. Caril Buddig & Co.).

Use a variety of sources

So is recruiting through social networking sites really dangerous? It could be.

But probably not much more than some other recruiting methods. The best solution is to find applicants in a variety of places to get a diverse candidate pool.

What do you think? Is recruiting on Facebook, LinkedIn and other sites likely to lead to legal problems for companies? Is the strategy worth the risk? Let us know in the comments section below.

A woman applied for a job as a sales representative. During her interview, she claimed, the hiring manager asked her about her plans for having children, saying the job would be “hard to do with a newborn.”

She replied that she didn’t plan to have any more children and was offered the job.

Several moths later, however, she was pregnant. She told the manager when she was due and asked for six to eight weeks of maternity leave. Allegedly, the boss responded angrily and said he’d have to check with the company’s owners.

After she didn’t hear back about the leave request for a few months, the employee brought it up again. Shortly after that, the company told her she was being laid off because of budget cuts.

The woman sued, claiming she was fired because she was pregnant.

The company tried to get the case tossed. It argued the decision was made by the company’s owners, who didn’t know at the time the employee had asked for maternity leave. Two other sales employees were laid off at the same time.

But the court didn’t buy it. The owners admitted the manager had significant input in deciding who was to be let go. And since he displayed his aversion to hiring a pregnant employee in the woman’s interview, there was enough evidence that her pregnancy was the cause of her termination.

Cite: Johnson v. Proline Concrete Tools, Inc.

In one recent case, an African-American employee was qualified for a promotion. But he was turned down in favor of a co-worker he believed to be less qualified.

When he complained, the company acknowledged that, on paper, he was qualified for the job. The reason he didn’t get it: his co-workers’ complaints about his professionalism, attitude and treatment of customers and other employees.

The employee thought his race was the real reason, and he sued.

Who won?

The judge sided with the company, agreeing that it takes more than just a good resume to get a job. The employee was arguably the most technically qualified, but his “soft skills” mattered, too.

There are a lot of factors that go into hiring or promotion decisions, and rejected candidates will rarely agree with outcome. But as long as managers have legitimate, nondiscriminatory reasons for turning someone down, the company can stay out of legal trouble.

Cite: Adebesi v. The University of Tennessee

When hiring for some jobs, managers need to take into account how the candidates will interact with customers. But managers can’t let customer preferences sway them into making biased decisions.

In one recent case, a temp agency was sued after repeatedly failing to hire women for certain jobs. The firm served clients  in the construction, freight handling, catering and janitorial industries.

Allegedly, available jobs were classified as “women’s jobs” or “men’s jobs.”

Why? Because customers asked the agency to do so. Apparently, some clients frequently asked the firm to only refer men for some positions. One female temp complained, but no change was made. She sued the temp agency, and other women joined the suit.

The firm tried to have the case thrown out, arguing that it was fulfilling its clients’ requests. But the judge didn’t buy that excuse. Since the women were technically employed by the staffing agency, the agency was liable for the bias.

The firm ended up settling for $250,000 (Cite: EEOC v. Preferred Labor LLC).

Customers ‘weren’t ready’

In another case, Walgreens was sued when a white assistant manager was promoted to store manager instead of an African-American with twice as much experience.

The company”s reason for the decision: The store was in a white area, and the hiring manager said the customers “were not ready to have a black manager.”

Again, the judge agreed that customers’ bias shouldn’t have been used to make the hiring decision. Walgreens lost the case (Cite: Simple v. Walgreen Co.).

Managers must be trained to avoid hiring based on race, gender and other protected classes — even when it’s in response to a stated or implied customer preference. That’s no less illegal than other kinds of biased decisions.

If the Employment Non-Discrimination Act (ENDA) passes, hiring managers will need training on how to avoid new types of discrimination.

The bill was introduced to the Senate Wednesday and was previously introduced to the House on June 24.

If passed, the bill would ban workplace discrimination against lesbian, gay and bisexual people as well as transgender individuals.

ENDA is similar to existing discrimination laws like the Civil Rights Act of 1964 — for example, it prohibits retaliation and would cover companies with 15 or more employees. The bill also includes exemptions for religious organizations in some cases.

One of the trickiest parts for employers may be enforcing dress codes. The bill says companies won’t be required to relax their standards, but will have to let transgender employees “adhere to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning.”

Will it pass?

The bill’s been introduced several times before, but ENDA may have the numbers on its side this time, with 152 co-sponsors in the House so far, 38 in the Senate, a Democratic majority in Congress and the support of the President.

Experts say the bill has a chance to become law by the end of this year.

What should HR do?

If ENDA passes, HR will need to:

1. Offer training to managers on interviewing and hiring in compliance with the law, as well as handling potentially uncomfortable situations (for example, learning a job applicant is a transgender person), and
2. Review harassment policies and add provisions related to sexual orientation and gender identity.

More than a quarter of people surveyed (27%) said they’ve been discriminated against when seeking a job or promotion, according to FindLaw.com.

The most common biases claimed were race and age. The breakdown of perceptions, by group:

• 42% of African-Americans say they’ve been discriminated against because of race
• 15% of people over 45 claim they’ve experienced age bias (so did 13% of those under 25, who aren’t protected by law), and
• 1 in 10 women say they’ve run into gender discrimination.

Of course, that doesn’t mean most companies are actually discriminating. But with the perception of discrimination so high, it’s imperative for hiring managers to be trained on how to make fair decisions and conduct interviews properly.

Avoiding comments and questions related to protected classes and keeping proper applicant and interview records can help prove hiring decisions were based on legitimate criteria.

Employers and managers often wish to build up a diverse workforce, and that’s a good thing. But a recent court ruling sends a powerful message: Discrimination is illegal no matter what form it takes.

One woman, who is white, sued the company after she applied for a job and was turned down. She had plenty of relevant experience and met all of the job’s requirements.

When she went to interview, she claimed she heard the hiring manager say to someone else, “We need more African-Americans.”

In the end, an African-American woman was hired — even though she was less qualified, according to the unsuccessful applicant. Moreover, the woman who was hired did not answer all the questions on the application and was not put through the same interview process.

In court, the judge sided with the woman. The hiring manager’s comment about needing more diversity, combined with the woman’s greater qualifications, were enough evidence that she was turned down because of her race.

The company had to pay a total of $99,500.

Diversity, the wrong way

The lesson of this case is clear: “Reverse discrimination” is still discrimination.

Companies with diversity goals should focus on attracting a diverse group of applicants, while still hiring the most qualified candidate.

And, of course, hiring managers must be careful about comments they make during the hiring process.

Cite: Vitullo v. Borough of Yeadon

In a recent opinion letter, the EEOC tried to clear up some confusion over the wording of help wanted ads.

The question: Does including a phrase such as “women and minorities encouraged to apply” break the law?

The answer: No, according to the EEOC.

Encouraging certain groups to apply doesn’t mean you’re biased against or in favor of any type of person.

However, the letter points out that some companies make the mistake of using similar — but discriminatory — phrasing. For example: “We are seeking women … ”

“Seeking” implies a preference for that group. Therefore, a court would likely consider it to be illegal bias.

Read the entire Opinion Letter here.

An African-American man applied for a job. Based on his experience, he was brought in to interview. He was turned down in favor of a white applicant. He sued for race discrimination — and won.

Why? Most of the evidence against the company came in the way interviewees were evaluated. All candidates were asked the same questions, but the way the answers were scored was highly subjective.

Each answer was graded on a point system, but there didn’t seem to be a set formula for how points were awarded. For example, when asked about his attendance record, the man said he’d only ever missed a few days due to illness. A white applicant gave nearly the same answer, but got a much higher score.

The judge ruled that the subjective grading system was a cover for the hiring manager’s bias.

The company made the right choice by keeping the interview questions similar for all applicants — but didn’t carry the consistency through to the scoring.

Cite: Dunlap v. Tennessee Valley Authority

A recent survey in the United Kingdom asked supervisors how they thought about candidates’ pregnancy during the hiring process. The result: A whopping 76% said they wouldn’t hire someone if they knew she was pregnant or was going to get pregnant within six months of starting the job.

We aren’t sure if a survey of American bosses would yield the same results, but if the EEOC’s statistics are any indication, it’s more important than ever for employers to be careful about the issue. Pregnancy discrimination charges hit a record high in 2007, going up 14% from the year before.

Supervisor training

The key to preventing suits is education. Some things managers need to know when they’re recruiting and interviewing:

• Don’t ask about family status or plans. Questions like those can slip out as benign chit-chat, but they also give unsuccessful candidates damaging evidence if they decide to bring a bias claim forward.
• “Planning to have children” itself isn’t a protected class — but not hiring women who plan on having kids can lead to sex discrimination suits.
• You can use your normal screening procedures to make sure pregnant candidates can perform the essential functions of the job — but you can’t hold them to different standards or use special procedures to determine their ability to work.

For more on pregnancy discrimination, read the EEOC’s fact sheet on the subject here.