Category: Discrimination

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.”

Prefer a free webinar? Try Legal Risks of Social Media in Hiring.

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!

Cuomo Proposal on Workplace Sexual Harassment

First Look: Governor Cuomo’s Proposal to Combat Workplace Sexual Harassment

On January 2, 2018, New York Governor Andrew Cuomo announced his plan to “Combat Sexual Harassment in the Workplace”. Cuomo’s agenda includes a multi-faceted approach that would affect both governmental and private employers. It includes at least five measures to address workplace sexual harassment in New York.

Introducing these initiatives, Governor Cuomo stated:

“2017 brought a long overdue reckoning where the secret and pervasive poison of workplace sexual harassment was exposed by brave women and men who said this ends now. Our challenge in government is to turn society’s revulsion into reform, and we in New York must seize the moment and lead the way. There must be zero tolerance for sexual harassment in any workplace, and we can and will end the secrecy and coercive practices that have enabled harassment for far too long.”

Though there are already pending bills that pursue similar objectives, the Governor has only laid out his specific agenda relatively generically. So let’s just take a preliminary look at how he seeks to change New York employment law.

Note: In this post I raise questions and suggest some downsides to these proposals. That certainly does not mean that I’m opposed to combating workplace sexual harassment. The employers I work with would welcome more effective means of preventing sexual harassment. But this is a very difficult area to legislate, with the potential for many undesirable consequences. So, I think it’s valuable to give them some thought and critical analysis.

Prevents Use of Taxpayer Dollars to Fund Individual Sexual Harassment Settlements

It’s not yet clear how far this proposal intends to go. Would it be limited to harassment claims against elected State officials? Or would it extend to all claims based on the actions of governmental employees at every level of government in New York?

The latter approach could be particularly game-changing. Employees claiming employment discrimination in the form of sexual harassment usually name their employer directly. In fact, under Title VII (the federal law that prohibits workplace sexual harassment), individual employees can’t be held liable. Even though the New York Human Rights Law permits individual liability in some situations, employees almost always include the employing entity itself in lawsuits.

What happens if an individual doesn’t have enough money to settle a sexual harassment claim? Does the governmental employer still have to defend the claim, perhaps without the ability to settle? Can a governmental entity still be liable and responsible for paying damages to an aggrieved employee?

There are many complicated aspects to what seems like a straightforward policy matter. Is it feasible to implement this approach? We’ll see.

Proposes Uniform Code of Sexual Harassment for All Branches of State and Local Government

Presumably, this would essentially write a new sexual harassment policy, with consistent complaint procedures, for all governmental employers in New York.

Notably, this proposal includes an “anonymous whistleblower process to help individuals communicate complaints across state and local government without fear of retribution or consequence.”

One can reasonably question how effectively employers can respond to anonymous sexual harassment reports. Even assuming the report names the alleged perpetrator, a good investigation usually begins with speaking with the victim of harassment. If the employer doesn’t know who that is, then they may have little to go on other than asking the named employee whether they have sexually harassed anyone. That may not yield tremendous results.

Hopefully any such initiative would recognize the value of victim involvement in the investigation of sexual harassment. Emphasizing existing anti-retaliation laws, for example, should be a valuable component.

Prohibits Confidentiality Agreements Relating to Sexual Assault or Harassment for All Branches of Government — State and Local — Unless Express Preference of the Victim

This addresses the concern that employees often agree not to discuss their claims in exchange for a financial settlement. Reasonably, the risk is that the perpetrator may commit further harassment because the previous victim could not warn everyone else.

From my experience, in most employment discrimination cases the employer is less concerned about the employee telling others what actually happened to them. They are more concerned about the employee telling others that they received money to go away. This is a valid fear where the employer credibly doesn’t think it did anything wrong, but doesn’t want to spend years litigating the employee’s claim. . . . And also doesn’t want every other unhappy employee, or more often former employee, to come seeking the same payout.

So, one potential downside to this rule would be a greater reluctance to settle cases. Without the confidentiality agreement, the defendants may perceive even greater value in litigating cases out to a decision by judge or jury. If everyone will know about the allegations (and assuming the defendant reasonably believes they did nothing wrong), then the defendant may be better off proving their innocence.

The proposal does purport to permit confidentiality agreements upon the “express preference of the victim”. One might question how to make that a workable standard. What’s the difference between an employee agreeing to confidentiality (as they must usually do now) and demonstrating an “express preference” for it? Will this just mean that the defendant can agree to observe confidentiality, but not the complaining employee?

Mandates Private Companies That Do Business with the State Report Sexual Assault and Harassment Statistics to Prevent Secrecy

We don’t yet know the scope of which companies would be covered or what exactly they must report.

Happily, the majority of companies that do business with the State probably won’t have any incidents to report. But some will. How many will depend on how those terms are defined, etc.

How will the State use this data? Will it cancel the contracts? Pursue litigation? Issue press releases?

Again, the details will matter.

Voids Forced Arbitration Policies or Clauses in Employee Contracts that Prevent Sexual Harassment Cases from Consideration in Law Enforcement Investigation and Trials

Frankly, it’s already unlikely that any arbitration policy or clause in employee contracts would prevent “law enforcement investigation” of sexual harassment cases . . . . Even to the extent that includes investigation by the New York State Division of Human Rights or the federal Equal Employment Opportunity Commission. The National Employment Law Project, a prominent employee-rights group, through its Senior Counsel Patricia Smith (former New York Commissioner of Labor under Governors Eliot Spitzer and David Paterson and U.S. Solicitor of Labor under President Obama), has also acknowledged this, along with expressing some doubts about other aspects of the proposal.

Thus, the primary effect of this piece of the legislation (if enforceable despite potential federal preemption arguments) would be to preserve employees’ default rights to go to court with a claim of workplace sexual harassment. It at least seems fairly straightforward, with few unintended consequences to victims of sexual harassment. Most likely, employees could still readily agree to arbitrate sexual harassment cases if they want to and employers are interested.

What New York Employers Should Already Be Doing to Combat Workplace Sexual Harassment

Again, my scrutiny of the Governor’s announced agenda only means to acknowledge the difficulty of addressing this serious issue. With or without new State legislation, all New York employers should be proactive in avoiding sexual harassment.

Keep in mind: the New York State Human Rights Law prohibits workplace sexual harassment for all New York employees. Other aspects of the State employment discrimination law only apply to employers with at least 4 employees. But the sexual harassment provisions apply to every employer.

For now, here are some basic elements every employer should implement to combat workplace sexual harassment:

 

I will continue to monitor these proposals and the related legislation. To make sure you don’t miss any important updates, sign up for my email newsletter!

Anti-Harassment Training

5 Best Reasons for Anti-Harassment Training

The media is full of devastating reports of sexual harassment these days. This is the time for us all to figure out how to put an end to it, along with all other forms of harassment. This is especially critical to employers. Not just because harassment is wrong and bad for business. But also because of their legal obligations under employment discrimination laws. Anti-harassment training is a key component of avoiding liability in this area.

Yes, training employees involves costs. You not only have to pay someone to conduct the training, but you also must invest the time of your employees to participate. But, even though most employers are not strictly required to provide anti-harassment training, it’s really too costly not to.

Still not convinced? Here are the 5 Best Reasons for providing Anti-Harassment Training in your workplace:

1. The Law Requires It (Where Applicable)

A few states require employers to provide sexual harassment training.

In California and Connecticut, employers with 50+ employees must provide 2 hours of sexual harassment prevention training to all supervisors in the state.  Covered employers must provide the training within 6 months of hire or promotion. California also requires retraining of these employees at least every 2 years.

Maine requires employers with 15+ employees to conduct an sexual harassment education and training program for all new employees in their first year of employment. More in-depth training is required for management and supervisory employees.

Several other states require training for certain employees, most typically those employed by the state itself. Most states, however, do not affirmatively require employers to conduct anti-harassment training.

The few laws that require training are limited to sexual harassment. However, I think it is very important not to limit anti-harassment training to harassment based on sex. This approach disproportionately victimizes women. A discussion of various protected characteristics brings everyone into the mix as a potential victim and harasser–obviously with the goal of having everyone be neither!

2. It Creates a Defense to Employee Claims

Even employers who are not in states that require them to provide anti-harassment training have good law-based reasons for doing so. Under most state and federal employment discrimination laws, the courts recognize a possible defense for employers who have taken reasonable efforts to prevent harassment. This is commonly known as the Faragher/Ellerth defense, based on the names of two U.S. Supreme Court cases.

This defense doesn’t help where the alleged harassment resulted in a “tangible employment action,” which could include reduction in pay, denial of promotion, or termination, for example.

In other cases, the employer the Faragher/Ellerth defense may apply if the employer can show that:

(a) The employer exercised reasonable care to prevent and promptly correct any harassing behavior; and

(b) The employee unreasonably failed to take advantage of any preventive or corrective opportunities by the employer or otherwise unreasonably failed to avoid harm.

As a practical matter, establishing this defense requires the employer to at least have an anti-harassment policy and an effective complaint procedure. Okay, so where does the training come in?

If nothing else, anti-harassment training goes a long way in helping an employer establish that employees knew about the anti-harassment policy and how to file a complaint! Ideally, the training will also encourage employees to report relatively minor incidents earlier so they don’t escalate into more serious situations. The employer’s prompt response in such cases can further prove the effectiveness its policy and procedures.

Click for more on Responding to Employment Discrimination Complaints.

3. Good Employees Will Behave Better

No one is arguing that if every employer provided anti-harassment training it would stop workplace harassment entirely. There’s not even good data that it will meaningfully deter the people most likely to engage in unlawful harassment. But let’s look at what it does do.

Think about your model employee, at least from a behavior standpoint. This may be the person most likely to change behavior following anti-harassment training. He or she hardly ever makes inappropriate comments to co-workers in the first place. But that doesn’t mean they are perfect and always avoid making others uncomfortable. Good training will demonstrate subtle ways they may occasionally offend others. Well-behaved employees will readily pick up on these examples and conform their behavior. They’ll become even more pleasant to work with and less likely to offend other employees.

Perhaps even more important, training can empower these good employees to recognize when others cross the line. Ideally, it will give them the knowledge and encouragement to speak up, either directly to the harasser or to human resources, etc. Or at least it will show them the value of speaking to those who suffer harassment from others to offer support.

4. Bad Employees Will Be Stopped

It would be nice to think that good training will deter employees from engaging in harassment. But the employees most likely to offend others may also be those least likely to accept readily that they’re doing anything wrong.

The good news is that because you hopefully have many more “good employees” than “bad” ones, the training can still reduce incidents of harassment. Training can show employees how to stand up for themselves and others. This can help end harassment as soon as it start. Or, if harassment persists, the victims and their co-workers will know how to report it. Then its just up to the organization to investigate appropriately and take the right action to correct the situation.

Related: What does it mean to have a “Zero-Tolerance” Anti-Harassment Policy?

5. It Sends the Right Message

Admittedly, most employees don’t look forward to attending anti-harassment training. But they can’t deny that workplace harassment is a very serious matter. And many, especially those who have felt victimized by harassment, will appreciate their employer’s efforts to address the subject.

Put differently, what does it say if you don’t provide anti-harassment training? At best, it suggests you accept harassment as inevitable and unavoidable. At worse, it appears your organization is indifferent to harassment. Providing the training doesn’t cost enough to justify either message.

You may also be interested in this webinar, where I discuss my Top 7 Tips for Investigating Workplace Harassment Complaints.