Thursday, February 14, 2008

Social Networking Sites: New Challenges for Employment Lawyers

Sorry to have been delinquent for two weeks, but other matters diverted my attention, and I simply couldn't find time to blog.


"They both [statistics & bikinis] show a lot, but not everything." - Toby Harrah

Disparate Impact Case filed by Baltimore City

Back on January 23, 2008, we blogged about the recent lawsuit filed by Baltimore City which contends that the high incidence of mortgage foreclosures among African-Americans in Baltimore City is on account of racial discrimination. We wondered whether this litigation does not ignore the fact that it was, to some extent, the Clinton administration that "liberalized" qualification standards for mortgages to increase home ownership among African-Americans, and we suggested that that "liberalization" may, in part, have led to the so-called sub prime mortgage crisis. After being duly castigated by some of my liberal friends for having such heretical thoughts, I was heartened to read Robert Cox recent article entitled: "Politicians Created Today's Sub prime Mortgage Crises."

Social Networking Sites

The phenomena of social networking sites and similar interactive cyberspace creations increasingly presents fascinating challenges for employment lawyers and eventually the Judges. On Tuesday, February 12, 2008, there was an intriguing article by Sarah E. Needleman in the Wall Street Journal entitled: "Need a New Situation? Check the Internet: Recruiters and Job Seekers Find Each Other Through Facebook, 'Fan' pages, Videos."

At first blush, some of the issues would seem to be:

  1. Is a recruitment ad, using Facebook, that targets exclusively "recent graduates and college seniors with majors in specific fields" potentially discriminatory on the basis of age?

  2. After decades of assiduously sanitizing the job application process to assure that the employer doesn't know the applicants age or race, doesn't "beam me up, Scotty" take us on a complete about-face, and how do employers protect themselves from the obvious complaint that is to come, that this facilitates discrimination?

  3. Assume that statistically a far great percentage of Caucasians job applicants have ready access to the internet, and are statistically more savvy on the net (remember these are merely assumptions - - I am not suggesting that they are necessarily accurate, much less am I suggesting that African-Americans are less intelligent than Caucasians), is reliance
    on these new online recruiting tools potentially subject to disparate impact attack as racially discriminatory?

There follows a list of citations to various articles about these new forms of recruitment.

Social Networking Sites Aren't Commonly Used to Dig Up Dirt, Elizabeth Saperstein, July 12, 2006. (

Social Networking Technology Boosts Job Recruiting, Frank Langfitt, November 22, 2006.

Cheezhead Blog, January 3, 2008.

Wall Street Journal Online, A Job Interview You Don’t Have to Show Up For, Anjali Athavaley, June, 20 2007., Verizon steps it up with targeted email recruitment ad, November 16, 2008

Shaker Recruitment Advertising & Communications, last accessed February 14, 2008.

Accenture, last accessed February 14, 2008

Quill, Social Networking Sites, Khristopher J. Brooks, January/February 2008.

Collaborative Law

We have blogged on several occasions about collaborative law, suggesting that employment lawyers ought to consider the potential use of these techniques in resolution of employment disputes. Scott R. Peppet has a good article entitled: "The (New) Ethics of Collaborative Law" in Dispute Resolution Magazine, Volume 14 No. 2 (Winter 2008), the publication of the ABA's Section of Dispute Resolution.

Immigration - Spate of Recent Victories for Local Governments

According to my scorecard, it is now 3 - 1 in reported decisions, challenging state and local laws imposing penalties on employers who hire illegal immigrants. The plaintiffs won the first challenge, the Hazleton Case (Lozano v. City of Hazleton, 496 F. Supp. 2d 477) in Pennsylvania, and since then have lost three in a row. See Ariz. Contrs. Ass'n v. Candelaria, 2008 U.S. Dist. LEXIS 9362 (D. Ariz. February 7, 2008); Gray v. City of Valley Park, 2008 U.S. Dist. LEXIS 7238 (ED. Mo. January 31, 2008); Nat'l Coalition of Latino Clergy, Inc. v. Henry, 2007 U.S. Dist. LEXIS 91487 (ND. Okla. December 12, 2007).


Like me, have you been staying awake nights, wondering who invented the game snooker? Well, I now know. Was it Andrew Mellon? No. Neville Chamberlain in 1875, while serving at a hill station in southern India, first thought of adding an extra colored (coloured for our British friends) ball to the billiards table, and thus snooker was invented. So, now we all know something nice to say about Mr. Appeasement.