Can Employers Use Social Media When Deciding Who to Hire?

I was recently asked whether employers are allowed to use information from social media when deciding whether to hire someone — and whether there are any laws that prohibit it.

Before we dive in, here’s the standard — but important — note:

This information is provided by the Law Office of E.C. Lewis, P.C. for general educational purposes only and not as legal advice for any specific situation. You should consult an attorney about your particular facts before making legal decisions.

With that said, here’s how social media and hiring typically interact today.

Are There Laws That Directly Ban Employers From Viewing Social Media?

In most situations, there is no blanket law that prohibits an employer from looking at publicly available social media content or considering information they learn from it during the hiring process.

However — that does not mean employers are free to use the information however they want. Instead, existing employment, privacy, and discrimination laws still apply, regardless of whether information is learned online or offline.

In other words, social media isn’t a separate legal category — it’s simply another source of information.

What Employers Cannot Do With Social Media Information

If an employer learns information about a candidate through social media that relates to a protected characteristic, they generally cannot use that information as the basis for a decision. Protected categories typically include:

  • race or ethnicity

  • sex, gender identity, or pregnancy

  • religion

  • age (over 40)

  • disability

  • national origin

  • genetic information

Many states and local jurisdictions also protect additional categories, such as:

  • marital status

  • sexual orientation

  • lawful off-duty conduct

  • military status or veteran status

  • political affiliation (in some locations)

So, whether an employer learns that information in an interview or from a Facebook profile, they cannot legally refuse to hire someone because of it.

The challenge in practice is that social media often exposes information that would have been unknown 20 years ago — and proving discriminatory intent is its own legal hurdle.

Where Social Media Can Hurt Job Applicants — Even If It’s Legal

Social media most strongly affects hiring in areas where no protection applies. For example, employers may (legally) decide they don’t want to hire someone who:

  • publicly posts extreme or offensive behavior

  • shares confidential information about past employers

  • demonstrates poor judgment or harassment online

  • appears to behave unprofessionally in a way connected to the job

There are also gray areas — such as lifestyle choices or strongly expressed opinions — that may not be unlawful factors but can still influence perception.

This reality makes online reputation management an important part of today’s job search.

Modern Legal Issues Employers Must Watch — 2026 Realities

Compared to when early social-media hiring questions first arose, several areas of law now affect how employers should approach screening:

Social Media Password & Access Restrictions

Many states prohibit employers from:

  • demanding account passwords

  • requiring applicants to log in during an interview

  • accessing private messages or closed-group activity

Employers should review their state’s privacy laws before requesting access of any kind.

Background Screening & Fair Hiring Procedures

If social media information is used as part of a formal background check, Fair Credit Reporting Act and similar state laws may apply.

That can trigger:

  • notice and disclosure requirements

  • candidate rights to dispute certain findings

Lawful Off-Duty Conduct Laws (varies by state)

Some states protect employees from discrimination based on legal activities outside of work, such as:

  • political participation

  • recreational activities

  • otherwise-lawful lifestyle choices

Employers must tread carefully when evaluating social behavior unrelated to job performance.

Bias & “Unintentional Discrimination”

Even a well-intentioned employer may expose themselves to risk if:

  • one hiring manager sees protected information that another would not have

  • social media filters out candidates from certain backgrounds disproportionately

Best practice today: separate recruiting from screening, and apply structured hiring criteria.

Practical Guidance for Job Seekers

A useful rule still applies:

If you would not want it read aloud in a job interview — reconsider posting it.

That doesn’t mean you must censor your life — just be mindful of how your online presence reflects your judgment and professionalism.

If a business won’t hire you because of something benign — such as a hobby, pet, or past creative expression — you may not be a good culture fit anyway. But posts that show disrespect, harassment, unsafe behavior, or confidential disclosures can legitimately — and legally — hurt opportunities.

Practical Guidance for Employers

If your business reviews social media when hiring, consider:

  • Using consistent policies and evaluation criteria

  • Training hiring managers on protected-class awareness

  • Avoiding review of private or password-protected content

  • Documenting job-related reasons for hiring decisions

  • Consulting counsel before relying on questionable content

A thoughtful process reduces both legal risk and unintentional bias.

Need Guidance About Hiring, Social Media, or Employment Policies?

Whether you are a business owner establishing hiring practices or an applicant with concerns about how social-media information was used in a hiring decision, it’s wise to get individualized legal advice.

If you have questions about social media and employment decisions, contact me, Elizabeth Lewis, at the Law Office of E.C. Lewis, P.C., your Denver Business Attorney.

Phone: 720-258-6647
Email: elizabeth.lewis@eclewis.com