This summer McDonald’s has teamed up with snapchat to hire 250,000 workers across the United States. (See Engadget.com.) For those who are not aware, Snapchat is an image messaging and multimedia mobile application. The idea behind the snaplication is that an interested snaplicant would video themselves and send it to the company. In this instance once videos are reviewed McDonald’s will send a link to its application page also within the app for the snaplicant to formally apply for a job. As noted in the article, the Snaplication will not take the place of a one-on-one interview but they will be considered.

The idea of a snaplication poses general questions on its legal implications in the employment hiring arena.  If companies begin using snaplications would this potentially amount to a rise in future litigation as to pre-hiring discrimination?

Imagine the potential for future claims. A snaplicant will have a documented video of their snaplication. This video would later be valuable in weighing future claims of discrimination. They say a picture is worth a thousand words, so imagine the force of a video. The idea of using snaplications may give ammunition to claims that may ordinarily not have merit.

Think for example of a raced based claim of discrimination in the hiring process. In the old school scenario the protected class applicant sends in an application to a company and is declined for an in-person interview. That applicant is just a name, without a face, without a race, or any other protected category.  Now envision the same protected class applicant sends in a snaplication to a company. The company declines an in-person interview. The snaplicant may now have some basis to indicate a lost opportunity due to race based discrimination and they have a video to prove exactly what was sent in to the company.

Snaplications may open the door to new-aged claims which would not have held muster if a company received a paper application with nothing other than a name and data on an applicant’s professional history.

Generally employment should not be advertised in a manner that indicates preference, limitation, specification or discrimination on any of the following categories: 1) race; 2) color; 3) religion; 4) sex; 5) national origin; or 6) age. (See 42 U.S.C. §2000e-3(b).) The California Government Code expands on this list adding the categories of ancestry, physical disability, mental disability, medical condition, genetic information, marital status, gender, gender identity, gender expression, sexual orientation, or military and veteran status. (See Cal. Gov. Code § 12940(d).) This begs the question, is a company soliciting snaplications advertising job opportunities based on the category of age? The answer is far from given, only 14 percent of Snapchat’s users are over 35 years old. This may be a stretch but there are other fundamental concerns with snaplications.

In looking at the state of the law, it is an unlawful employment practice, unless based upon a bonafide occupational qualification to refuse to hire or employee a person based on the same categories enumerated above. (See Cal. Gov. Code § 12940(a).) Therefore, in assessing the legal issues that may flow from a snaplication it is key to reflect on some of the guidelines for pre-employment inquires under the law.

It is unlawful for an employer to discriminate on the basis of age for individuals who are over 40 years old. (See 29 U.S.C. §§623(a), 631(a).) Although age may be difficult to ascertain via a snaplication a snaplicant clearly over 40 years old may have the opportunity to invoke the protections of the law if not asked for an in-person interview after submitting a snaplication.  Denying employment because of a foreign accent or inability to communicate well in English may constitute national origin discrimination. (See 29 C.F.R. §1606.6(b)(1)). An accent would be evident in a snaplication and a snaplicant could also potentially invoke the protection of the law due to this category.

Other obvious protected categories which would be readily apparent through a snaplication are sex, a religious headscarf and potentially pregnancy depending on the distances of the video footage. It is unlawful for an employer to refuse to hire an applicant with the motive of avoiding the need to accommodate the applicant’s religious practice. (See 42 U.S.C. §2000e-2(a)(1), (m)). The same is true for pre-employment inquires limiting, specifying or discriminating based on sex and pregnancy. (See 29 C.F.R. §1604.7; see 42 U.S.C. §2000e-2; see also 42 U.S.C. § 2000e(k).)

Only time will tell how snaplications bode in the employment hiring arena and whether new claims based on pre-hire discrimination begin to have an uptick.