Can techniques for finding a good date be used to find a good job or a good candidate?  Some creators of recruiting technology think so.  The recruiting app Switch uses a Tinder-like tool to match hiring managers and potential job applicants.  eHarmony, the venerable online dating site, has re-launched a job matching system called Elevated Careers that uses personality-based testing and “cultural fit” analysis to help job seekers and employers find each other. It’s too soon to tell how popular or successful these tools will be, but it’s clear that they will be heavily marketed, and they may be coming to an employer near you.

Like all flashy new HR technology, Switch, Elevated Careers and their progeny will promise to improve and simplify recruiting and job seeking – and they may do just that.  But, as with all flashy new HR technology, the implementation of these tools presents legal risks for employers.

Here are our concerns:

Discrimination.  It is the recruiting employer’s responsibility to make sure that its hiring methods do not result in unlawful discrimination.

• Tests or screening methods that create a disparate impact on any protected class, regardless of the intent of the employer or the vendor, violate federal and state law. Federal regulations require that all applicant testing must be validated using the Uniform Guidelines on Employee Selection Procedures.  All questions must be job related and based on business necessity.
• Products like the personality-based testing featured by Elevated Careers may violate state or federal prohibitions on inquiries about protected class status and consideration of protected class status.  So, for example, when the Elevated Careers questionnaire asks about marital status (as seen in this video), it seeks information that employers in Minnesota, California, Illinois and other states may not inquire about or consider.

Recordkeeping.  Federal and state laws require employers to keep records of job-seekers who apply for positions.  If a hiring manager uses Switch and “swipes left” to reject a potential applicant who has “swiped right” to indicate interest in a job, who will keep necessary records of that encounter, and where will the records be kept?  If a candidate completes the process of providing information to Elevated Careers, will that information be provided, in turn, to each employer the candidate is interested in? Will the information provided to the employers be adequate to meet recordkeeping obligations?

Agency.  Technology vendors who provide screening, testing, or selection services to prospective employers are the agents of those employers.  The employers have legal responsibility for the actions of their agents.  Whether or not employers know about unlawful selection criteria or processes used by their agents, they will be liable for the result.  It is essential that vendors’ methods are thoroughly understood, and equally essential that vendors understand the legal constraints on selection and hiring.

As with all HR technology, mindful adoption and knowledgeable use are the keys to enjoying the benefits of “matching” technology while mitigating associated risks.