In conducting an online search or reviewing social media sites of an applicant or an employee, an employer may learn information about the individual’s protected class status. While employers in most cases are not prohibited from learning protected class information, they are prohibited from considering protected class information in making hiring and employment decisions. As such, having access to this information through online searches can increase the risk of a discrimination claim. Employers should therefore take special steps to wall off the individuals performing searches from the hiring or employment decision process to ensure that protected class information is not shared with or taken into account in the decision-making process. Special Issues for Genetic Information . The ease in obtaining information about genetic information of employees also raises important employment law considerations for employers. The federal Genetic Information Nondiscrimination Act (“GINA”) of 2008 provides that it is an unlawful employment practice for an employer or other covered entity to “request, require, or purchase genetic information with respect to an employee or family member of the employee.” [See GINA § 202(a)]. GINA defines “genetic information” broadly, providing that genetic information may include an individual’s family medical history or an individual’s own disclosure of a genetic condition. Minnesota state law also prohibits discrimination based on genetic information (See Minn. Stat. § 181.974). Because genetic information may be obtained through an online or social media search, employers need to take care not to violate GINA in performing online applicant screening or gathering information about current employees. The Equal Employment Opportunity Commission’s (“EEOC”) final regulations implementing GINA provide some guidance on the acquisition of genetic information about applicants or employees via the Internet and social media sites. According to the EEOC, an Internet search on an individual that is likely to result in obtaining genetic information constitutes an unlawful “request” for genetic information, whereas acquisition of information from a social media platform where the employee has given the supervisor permission to access the profile is considered inadvertent. [See 29 C.F.R. § 1635.8].
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