I had several media requests today asking about employers asking job applicants for their Facebook passwords, but I wasn’t sure why.
I just noticed a Toronto Star piece describing how an applicant for a police position was asked to give his Facebook password in 
a job interview. My first reaction to this was, “what kind of a sleazy employer would ask for that”. It’s like asking for the key to an applicant’s diary. Sadly, there are some out there, even in Ontario apparently.
I’m going to bed, having just come home from yet another awful Leaf game. But my first take on this is that asking a job applicant for their Facebook password is a violation of the Ontario Human Rights Code, and unlawful. Take a look at Section 23 of the Code, which sets out rules relating to job application forms and interviews. Here is what is says:
Application for employment
23(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
The prohibited grounds include: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
Section 23(2) says that an employer can’t ask a job applicant for information that “directly or indirectly” classifies a person by a prohibited ground. In other words, it is none of an employer’s business if you are married or single (family status), whether you are gay, straight, or bisexual (sexual orientation), what your religion is (creed) or your race, if you are Aboriginal, what your skin colour is, where you are from, how old you are, whether you have children (family status), and whether you have a disability. Some of these things will be evident by the interview stage (like skin colour and maybe disability), but the employer certainly cannot ask you to disclose other information about prohibited grounds that are not self-evident in the interview. Moreover, Section 23 doesn’t just ban the question “Are you disabled?”, it bans other questions that are likely to give the employer the answer to that question, such as “Can you lift 50 pounds and stand for extended periods of time?”. The objective is to keep information about the applicant’s association with prohibited grounds out of the hands of employers during the recruitment stage.
Now ask yourself whether your Facebook page might disclose any of the protected information to a prospective employer?
Does it say if you are married or single? If so, none of employer’s business, and illegal to ask for a means to check that.
Does it indicate your sexual orientation, or your marital status? If so, none of employer’s business, and illegal to ask for a means to check that.
Does it indicate your religion? Your age? Where you were born? Whether you have children? If so, none of a prospective employer’s business, and they are breaking the law if they ask you to provide them with access to this information.
Odds are most Facebook pages do indicate some or all of these things. Therefore, the Code prohibits an employer from asking about it, or asking you to provide a secret password that will allow the employer to access this information.
Put it this way: Could an prospective employer ask you directly what church, temple, or synagog you attend, or whether you are married, gay, or have children? Of course not. So why can they ask you for the key to access a personal webpage that would tell them that information indirectly. If you have a piece of paper locked in your glove compartment with all the info about your sexual orientation, religion, family, and age, can an employer insist on having the key?
To me, this is a no-brainer (though others may disagree, of course). I think it is against the law for an employer to ask for a secret password to a personal Facebook account, in Ontario at least. I would have to look at the human rights legislation of the other Canadian jurisdictions. If you are an employer, don’t ask for this information. It’s illegal, irrelevant, and none of your business. The Human Rights Commission should issue a strong and clear paper stating this–perhaps it already has, I haven’t looked.
Of course, applicants who refuse to give the password to an employer that asks for it may not get the job. They could file a human rights complaint, and in theory the Tribunal could order the employer to hire them. But that doesn’t happen very often, and anyways, the complainant would probably be satisfied with taking some cash rather than accept a job under these circumstances. So my advice to job seekers who think they might run into an illegal request for access to personal information on their facebook page is to create second dummy page for that purpose. Put innocuous stuff on that page, making sure it doesn’t disclose anything that you would not want an employer to see. Give the law-breaking employer the password to that page, if you really need the job. Anyone see any problem with that advice? [Post-script: I’m told that it is a violation of facebook rules to open two accounts, for what that is worth]
Does anyone think I am wrong about this? If so, tell me why an employer can ask for private information that is likely to disclose a whole range of information that the Human Rights Code prohibits an employer from asking about? Am I missing something obvious here?
