I must confess, when I was interviewing prospective employees as a manager, I found several of the so-called "forbidden questions" rather silly. Oh, I would dutifully avoid them. But the notion that it was wrong to ask a prospective colleague questions that would be perfectly acceptable to ask a complete stranger at a networking function seemed ridiculous to me.
Of course, our society's proclivity for litigating every type of disagreement, misunderstanding, or mistake has forced all of us to set aside common sense at times in the name of risk management—or to comply with intrusive laws. The resulting paranoia stretches my patience at times, but I understand the reason for it.
Ironically, many of the measures aimed at minimizing risk in hiring (from a liability standpoint) effectively increase the risk (in terms of hiring the wrong person). My daughter's boss is in considerable hot water now because of his bullying management style and poor decisions. He was hired because he had held the same position at a similar operation in another location. Now the story has emerged that he was fired from that job. How could his current employer not know? Because references these days are reluctant to share such information.
Which brings us to Facebook. It's understandable why it has become routine practice in many companies to check candidates' online information, such as that posted on their Facebook profile. This way employers can gain personal information about a candidate that they are not allowed to ask about. As you know, they may also find some incriminating evidence that they might not have even thought of asking about. It can help reduce the risk of making a bad hire.
I have no problem with using internet searches to learn more about prospective employees. As I've written before, I regularly google people I'm going to be meeting or talking with to learn something about them in advance. The information is publicly available, and in most cases at the individual's initiative. Yes, it may reveal personal information that you're not supposed to ask about, but the primary concern is about potential discrimination, not possessing knowledge that the candidate decided to make public.
But a growing number of employers are taking internet snooping to a whole new level by asking candidates to give them their Facebook (or other social networking sites) login information, thus gaining access to content they intended to reserve for friends and family. To my surprise, this practice is not illegal in most states. I suspect it soon will be, for it is far more invasive than simply asking questions like, "Are you married?"
Until it is illegal, is it nevertheless good business practice to ask for such access? I think not, for a couple of primary reasons. Foremost, I would argue that it is ethically wrong. For this reason alone, I'm surprised that a growing number of companies find it acceptable. They're using their power as a potential employer to essentially coerce candidates to surrender their private information. If it is wrong to ask the question, how can it be right to force someone to give you access to the answer?
Secondly, while it may seem wise to learn as much as you can about a job applicant, this practice could put you at legal risk. It clearly violates the spirit of the various federal and state laws designed to protect people against job-related discrimination. If it's risky to ask the question, how can it not be risky to pressure someone into letting you search his or her password-protected online information? Should you not hire that person, you've certainly raised the prospect of a discrimination claim.
Some of that risk could come from misinterpreting what you see on Facebook. If you have a Facebook account as I do, you know that much of what is posted there is sarcastic, cryptic, or joking. In other words, messages that are best interpreted by people who know the individual. A college student who writes that he was "medicating for a grueling all-nighter" may hurt his chances with a prospective employer. But friends understand the reference is to energy drinks.
A better approach is to ask questions that reveal something about the candidate's character and competence. A/E firms often focus too much on qualifications, only to find out later that the person (not the qualifications) is a poor fit for the firm. A behavior- or performance-based interview involves asking the applicant how he or she would respond to situations specifically relevant to the job in question. You might find this interview form helpful in this regard.