Remember the critically acclaimed, wildly popular, academy award-winning and thoroughly enjoyable tear-jerker movie “Philadelphia” ?
“Philadelphia” is about Andrew Beckett, a gay lawyer suffering from AIDS who was fired from his job at a white shoe law firm. He brought suit, alleging that he was sabotaged and then terminated because of his illness. The attorney, Andy, played impeccably by Tom Hanks, had not made his sexual orientation or illness public, and took great strides to hide the symptoms of his disease, even using make-up to try (unsuccessfully) to cover the tell-tale lesions on his face.
At a critical scene in the movie, just after the named partner at the law firm is served with papers of the lawsuit, he declares war on Andy. The head honcho countered a suggestion by another partner that they just settle it out by exclaiming, “Andy brought AIDS into our offices.” In response to the suggestion that a jury might decide that Andy has a case, Wheeler protests that “[Andy] was fired for incompetence, not because he has AIDS.“ Then he accusingly asks his partner,
“You didn’t know he was sick, did you, Bob?”
“Holy shit! Did you, Bob?” added another lawyer.
Reluctantly, and non-convincingly, Bob responded, “No. . . no, not — not really.”
Yeah, the employer knew. Andy’s attorney proved it at trial despite the venerable defense team’s arguments that Andrew was successful in his deception.
Does it matter whether they knew? Hell yeah.
Ahh, because having proof that the employer knew is money in the bank for the victim, albeit in escrow. Employers aren’t allowed to ask religion, former drug addiction, association or membership in an ethnic group, pregnancy or plans to marry or have children, etc. Not knowing protects the employer from being accused of wrongfully acting on the knowledge and it protects the employee from being discriminated against on these personal, not-job related, characteristics.
Employers asking for access to Facebook pages designated as private gets them the answers to all those questions they aren’t allowed to ask directly. And it makes one less thing an employee has to prove in a discrimination case. All the employee would have to do is say, “Yeah,the employer knew because they asked for my Facebook login information and it’s all right there on my profile, with posts from all my gay, Jewish, Muslim, or drug addicted friends, plus my post that I’m five days late. Hell yeah, they knew I have [insert condition here] and that’s why I didn’t get the job or why I was forced to work in the basement, wearing a mask.”
Just like in the movie Philadelphia many a case is won or lost based on that little fact – Did the employer even know? This is why smart employers, or actually law-abiding employers, don’t ask about these things. (There are some jobs that require a more thorough background check, but most do not.)
So, those employers out there asking interviewees for Facebook passwords are, in my humble opinion, idiots. They are inviting arguments like, “Oh I was a wonderful candidate until you saw on my Facebook profile that my husband is black or that my partner is HIV positive, or that I don’t believe in God, or I want to have children, or that I attend AA meetings even though I’m 689 days sober.”
Employers just shouldn’t ask for Facebook passwords. It’s bad business. If they do, I’d love to hear and potential Employee respond with,
“Seriously?” while fumbling, looking for paper upon which to write the password, and adding, “I have a lot of stuff on there about my faith and some things I’ve been dealing with.“
While writing down the password the potential employee could add,
“There’s no way you can look at it without seeing all that stuff, that’s why I keep it private. Some people are funny about . . . some things . . . but I need to be able to share the matters that are important to me with people who are important to me, even if they are aren’t important to everybody. You understand.“
Then, he/she can reach across the desk, holding out the paper with the password, look the interviewer straight in the eyes and state,
“I really believe I’m the best candidate for this job and I’m looking forward to becoming a member of the team here. I’m just really surprised that you want to know . . . so much.” And, after a pause, “But here, if you really need to know . . .“
Humph. Potential employers asking for Facebook passwords — that’s just crazy talk. Employers who do this are —well, just crazy. But you know who’s not crazy? The employee who receives the request. The employer just handed him/her job security — or a nice settlement for discriminatory failure to hire.
So let’s all pad our Facebook profile with information that shows our religion, marital, parental, disability, pregnancy status, along with our ethnic background and those of our loved ones. Put all your stuff out there — oh wait a minute, it’s Facebook — you already have all your business right there in blue and white! If the employer makes you share it and if you get treated like crap because of it (or even arguably because of it) and you sue them, well — they had it coming.
Or, perhaps, just link this post to your wall and allow access, baby! Ha!
Just Me With . . . some thoughts on this whole Facebook thing.
And by the way, none of the above should be construed as legal advice. . . . I’m just sayin’ . . .