The use of social networking sites can provide a valuable tool for finding quality candidates by searching for qualifications. However, the wrong use of information obtained from these sites may be discriminatory, since most individuals' race, gender, general age and possibly ethnicity can be discerned from available information.

According to Renee Jackson of Nixon Peabody LLP, social media should be one of many tools used in recruitment. When it comes to conducting a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and the company should only use publicly available information.

There are, in fact, already four states with laws prohibiting employers from requesting passwords from applicants, while several other states have such laws pending.

The hiring process is not the only time that social media is relevant. Lynne Bernabei, of Bernabei & Wachtel PLLC, explained to the EEOC how use of personal social media accounts could figure into situations of workplace harassment.

“The issue is further complicated as more employers use a 'bring your own device' policy, in which they require or expect employees to use personal laptops, smartphones, or other technology while on the job,” she said.

Commissioner Victoria Lipnic said, “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.”