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Facebook and human rights legislation

There have been reports out of the U.S. that some employers have been asking job candidates at the interview stage for the password to their Facebook page. That’s a question Canadian employers would be wise not to ask.
There is no law that particularly prohibits an employer from asking for that password. It does not specifically violate any privacy legislation. But, by asking that question, employers expose themselves to complaints of discrimination under human rights legislation.
Both the Ontario and Canada human rights legislation prohibit discrimination in employment on the basis of, among other things, race, ancestry, place of origin, ethnic origin, citizenship, creed, sexual orientation, age, family status, marital status or handicap. That’s a long list of things you wouldn’t usually learn during a job interview. It is contrary to human rights legislation to ask questions with respect to these issues.
The fact is that employers don’t tend to ask for references unless you have had a good interview. It may not mean you are going to be hired unless the references are bad but it probably means that you are one of their top candidates. Employers don’t want to waste time following up references for people they have already decided they are not going to hire.
Presumably, the same would go for any employer disposed to ask for a Facebook password. Who is going to take the time to comb through a Facebook page of someone in whom they are not interested?
So let’s say that after a fairly successful interview, a prospect is asked for their password and gives it. The Facebook page may very well reveal a number of the answers to issues which human rights legislation says are taboo.
Now, if the employee is not hired, given the enthusiasm with which they were treated at the interview, they are going to wonder whether they were turned down because their Facebook page revealed that they have struggled with mental health issues or are pregnant or trying to get pregnant. Or maybe the employer just doesn’t like gay people. Perhaps the fact that your Facebook page has links to sites dealing with addiction issues was the clincher?
All an employee has to do is phone the Ontario Human Rights Tribunal and fill out a form alleging they were not offered the employment because of one of those prohibited grounds and the process begins. The employer will end up hiring a lawyer and going to a hearing on the issue and, win or lose, the cost of hiring that lawyer and the time the employer  spends dealing with it will never be compensated.
My advice, employers, is that you don’t want to know what’s on somebody’s Facebook page.  It’s a Pandora’s box of trouble that a wise employer will not open.
If you never asked questions about prohibited issues at the interview and didn’t ask for access to a social media website, it’s very unlikely that a complaint to a human rights tribunal will ever be made. If it is, you will likely be able to have it thrown out quickly on the basis that you had no knowledge upon which you could have discriminated, even if you were so inclined.
Separate and apart from the law, from a common sense point of view, anyone who does surrender their password will have done so because they were desperate for a job. They won’t like it. They will remember the invasion of privacy as an ugly start to the relationship and if there’s any justice in the world, they will find a new job with a less ridiculous employer just when you’ve spent a couple of months training.

Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.

As published by The Hamilton Spectator, April 2, 2012
Ed Canning
Ed Canning
P: 905.572.5809