Virtual hiring in Covid era could present ‘70s era problem for employers

Those who remember the ‘70s group Bread might recall the lyric, “If a picture paints a thousand words, then why can’t I paint you?” The song was very popular back then, and so was the practice of employers asking job applicants to submit photos with job applications. That helped some employers size up people they might want to hire or at least interview. It also helped some bad-acting employers discriminate in hiring based on race, color, gender, age, etc. Sadly, many qualified candidates literally didn’t get a second look, and that practice went on for years until candidates challenged the practice as discriminatory.

While some state laws now prohibit the requirement of photographs with job applications or consider that practice as evidence of workplace discrimination, New Hampshire’s employment discrimination laws do not specifically prohibit it. Also, the practice isn’t specifically prohibited under federal discrimination laws, but in 2016 the U.S. Equal Employment Opportunity Commission took the position that employers should not ask for photographs of job applicants.

In its guidance on discrimination in the hiring process, the EEOC says:

“Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion or age, such inquiries may be used as evidence of an employer’s intent to discriminate unless the questions asked can be justified by some business purpose. … [Therefore], employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted.”

Clearly, photographs cannot demonstrate an applicant’s qualifications. But they can lead to discrimination based on an applicant’s appearance. There are studies supporting the belief that discrimination can occur due to factors visible on the photograph, including race, age, gender and body image.

For some time, employers have abandoned the practice of requesting photographs with applications. Likewise, jobseekers, unless they were submitting a headshot as a part of an acting audition or beauty pageant (otherwise now referred to as a “scholarship competition”), no longer submit photos with applications or resumes. Photographs can, of course, come later in the hiring process as a part of identity verification, licensure or security clearance checks.

So, what’s the problem? Among other things, social media has opened a potential portal to the faces and activities of applicants. Unless the applicant’s profile and posts are private, employers can see pictures of the applicant as well as other images and text in those posts. Apart from pictures of recent meals and pet candids, those posts can paint a picture, accurate or not, of the applicant. Hiring managers may use that as a basis not to proceed with that application.

Some state laws prohibit employers to require applicants or employees to disclose their social media username or passwords (see, by way of example, NH RSA 275:74), but if the applicant has a public profile and posts aren’t private, an employer can indeed access those sites without the applicant’s consent or knowledge.

(You can pause reading now so you can reset the privacy settings on your social media sites.)

In addition to social media portals, Covid-19 has changed how many employers recruit, screen and hire employees.

Since March 2020, virtual hiring has become the new normal for many employers. This means that employers generally don’t meet applicants in person until after they are hired. In fact, with the rise in remote work, some employers often don’t spend any time in the same room with new hires. Again, so what’s the problem? Zoom interviews are helpful, but they are no substitute for in-person interviews and screening. In addition to being somewhat impersonal and awkward, in addition to the applicant’s appearance on the computer screen, the applicant’s choice of artwork or books in the background could cause otherwise qualified candidates to be cast aside.

To be clear, Zoom interviews are certainly legal and are not the same as photos with applications, but employers should still be careful about the opinions formed from these virtual sessions.

A picture can paint a thousand words.

Employers need to be careful to avoid conclusions based on images and to take time to review an applicant’s experience before deciding whether or not to proceed with that candidate.

Jim Reidy is a shareholder with Sheehan Phinney and chair of the firm’s labor and employment practice group.