If you were to walk into my office, I’d have a pretty decent sense of your gender, your age, your race, and other identity markers. My knowledge wouldn’t be perfect, but it would give me plenty of information that I could use to discriminate against you if I felt like it. The law doesn’t prohibit me for “collecting” this information in a job interview nor does it say that discrimination is acceptable if you “shared” this information with me. That’s good news given that faking what’s written on your body is bloody hard. What the law does is regulate how this information can be used by me, the theoretical employer. This doesn’t put an end to all discrimination – plenty of people are discriminated against based on what’s written on their bodies – but it does provide you with legal rights if you think you were discriminated against and it forces the employer to think twice about hiring practices.
The Internet has made it possible for you to create digital bodies that reflect a whole lot more than your demographics. Your online profiles convey a lot about you, but that content is produced in a context. And, more often than not, that context has nothing to do with employment. This creates an interesting conundrum. Should employers have the right to discriminate against you because of your Facebook profile? One might argue that they should because such a profile reflects your “character” or your priorities or your public presence. Personally, I think that’s just code for discriminating against you because you’re not like me, the theoretical employer.
Of course, it’s a tough call. Hiring is hard. We’re always looking for better ways to judge someone and goddess knows that an interview plus resume is rarely the best way to assess whether or not there’s a “good fit.” It’s far too tempting to jump on the Internet and try to figure out who someone is based on what we can drudge up online. This might be reasonable if only we were reasonable judges of people’s signaling or remotely good at assessing them in context. Cuz it’s a whole lot harder to assess someone’s professional sensibilities by their social activities if they come from a world different than our own.
Given this, I was fascinated to learn that the German government is proposing legislation that would put restrictions on what Internet content employers could use when recruiting.
A decade ago, all of our legal approaches to the Internet focused on what data online companies could collect. This makes sense if you think of the Internet as a broadcast medium. But then along came the mainstreamification of social media and user-generated content. People are sharing content left right and center as part of their daily sociable practices. They’re sharing as if the Internet is a social place, not a professional place. More accurately, they’re sharing in a setting where there’s no clear delineation of social and professional spheres. Since social media became popular, folks have continuously talked about how we need to teach people to not share what might cause them professional consternation. Those warnings haven’t worked. And for good reason. What’s professionally questionable to one may be perfectly appropriate to another. Or the social gain one sees might outweigh the professional risks. Or, more simply, people may just be naive.
I’m sick of hearing about how the onus should be entirely on the person doing the sharing. There are darn good reasons in which people share information and just because you can dig it up doesn’t mean that it’s ethical to use it. So I’m delighted by the German move, if for no other reason than to highlight that we need to rethink our regulatory approaches. I strongly believe that we need to spend more time talking about how information is being used and less time talking about how stupid people are for sharing it in the first place.