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Employment Discrimination Through Facebook Ads

Employment Discrimination Through Facebook Ads

On December 20, 2017, the Communications Workers of America filed a federal lawsuit in California claiming that various employers had discriminated against job applicants based on age. The named defendant employers are T-Mobile, Amazon, Cox Communications, and Cox Media Group. CWA contends these companies (among others) unlawfully targeted candidates through Facebook ads. Several individuals joined CWA as plaintiffs in this proposed class action.

In addition to the four named defendants, the lawsuit purports to also “bring this action . . . against a Defendant Class of hundreds of major American employers and employment agencies that, upon information and belief, routinely exclude older workers from receiving their employment and recruiting ads on Facebook, and thus deny older workers job opportunities.” The lawsuit indicates that the plaintiffs intend to identify additional defendants “through early discovery in this action or a pre-discovery exchange of information with Facebook.”

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Plaintiffs’ Allegations

These statements from the lawsuit reflect the theory behind the plaintiffs’ claims:

  • “These companies eliminate older workers from receiving job ads by specifically targeting their employment ads to younger workers via Facebook’s ad platform.”
  • “Upon information and belief, nationwide, large and small employers alike apparently believe that it is appropriate and desirable to exclude American workers from job opportunities solely based on their age.”
  • “When selecting the population of Facebook users who will receive employment ads, employers and employment agencies routinely focus their ads on prospective applicants who are in age bands that exclude many workers who are 40-years-old or greater, e.g., workers who are ‘ages 18 to 38,’ ‘ages 22 to 45,’ or ‘ages 21 to 55,’ thereby preventing older workers from receiving advertising and recruitment for job opportunities, upon information and belief.”
  • “Upon information and belief, Facebook does not stop an employer or employment agency from selecting a younger age range (such as ages 18 to 40) that discriminates against older workers in setting the population that will receive an employment ad via Facebook.”
  • “Facebook provides advertisers the ability to send employment ads to individuals who fall into the following categories related to a younger age group or categories that ordinarily would be a proxy for younger workers: Young & hip – a group of millions of people “whose activities strongly suggest they are young and hip” (according to Facebook); and Millennials – a group of millions of people “who have expressed an interest in or like pages related to Millennials” (according to Facebook).”

Potential Defendants

The lawsuit describes as defendants:

All employers or employment agencies who annually employ at least 2,500 employees or annually refer for employment at least 2,500 employees, and have purchased or sent employment-related Facebook advertisements that placed an upper age limit on the population of Facebook users that was eligible to receive an advertisement, at any time from the earliest date actionable under the limitations period applicable to the given claim, until the date of judgment in this action.

A Federal Complaint for the Facebook Age

The complaint document itself demonstrates a modern approach to federal court litigation. It includes screenshots of some of the contested Facebook ads pasted right into the standard pleading paragraphs.

One such screenshot is a “Why am I seeing this ad?” window. It indicates, “There may be other reasons you’re seeing this ad, including that T-Mobile Careers wants to reach people ages 18 to 38 who live or were recently in the United States.

The lawsuit does not specifically name Facebook as a defendant. However, it uses Facebook’s own job posting as evidence of the capability to target job candidates by age. (At least the Facebook example shown suggests a larger age range, from 21 to 55!)

Age Discrimination

For procedural reasons, the CWA lawsuit only asserts claims under various state laws that prohibit age discrimination. But the plaintiffs reference the federal Age Discrimination in Employment Act in summarizing the legal/policy basis for their claims.

The ADEA prohibits employers with 20+ employees from discriminating based on age among employees 40 years old or older. It includes this provision specific to job advertisements:

Printing or publication of notice or advertisement indicating preference, limitation, etc.

It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.

Not Just Age Discrimination

Age isn’t the only characteristic upon which applicants have alleged employment discrimination through Facebook ads. On November 3, 2016, a similar class action lawsuit was filed in the same California federal court. Facebook is the only named defendant in that case, which alleged both employment- and housing-related discrimination based on race, color, religion, sex, familial status, and national origin.

The employment discrimination claims allege violation of Title VII of the Civil Rights Act of 1964. Besides Facebook, this lawsuit uses “Doe Defendants 1 to 9,999” to refer to purported “entities that have used Facebook’s Ad Platform to illegally discriminate . . . with advertisements for employment or housing.”

Like the ADEA, Title VII has a specific provision regarding job advertisements:

Printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination; occupational qualification exception

It shall be an unlawful employment practice for an employer . . . to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer . . .  indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.

Facebook and the plaintiffs are currently mediating this lawsuit.

Avoiding Employment Discrimination Through Facebook Ads

We don’t have court decisions on these claims yet. Nonetheless, most employers should probably avoid limiting publication of their online job postings to certain age groups. Targeting individuals 18+ may be acceptable for many jobs. But there would be few situations where an upper age limit would be a risk-free approach.

Likewise, limiting ads based on gender, race, religion, etc., is also a risky strategy. Perhaps a compelling (and potentially non-discriminatory) business case can be made. But applicants may still follow the lead of these cases and challenge online recruiting practices that appear to exclude them.

As the litigation develops in these and other cases, perhaps some additional leeway may emerge as reasonable. For example, is it okay to run separate ads for different age groups, as long as no-one is excluded? Would the employer need to spend an equal amount on all age groups? Is that even possible to guarantee?

We may also see Facebook change its approach to ad targeting because of the discrimination claims. That could have implications beyond recruiting, potentially affecting all forms of online advertising.

Learn more about employment discrimination through Facebook Ads and other recruiting issues:

Check out my webinar on Legal Risks of Social Media in Hiring!