Silicon Valley has long been accused of engaging in ageism against older job seekers. Now, Facebook and other online giants are facing pressure to address the negative impact of targeted ads on their platforms.
The Communications Workers of America (CWA) and three workers filed a lawsuit against 13 companies, alleging they engaged in age discrimination against older job applicants through the use of targeted online ads on Facebook and other platforms.
Amazon, Cox Communications, T-Mobile and other U.S. employers have been sued for routinely imposing age restrictions on who can view recruitment ads on Facebook. The class action lawsuit was filed in San Francisco federal court on December 20. Besides the three plaintiffs ranging in age from 45 to 67, it also represents Facebook users aged 40 or older who may have missed out on viewing potential job opportunities.
The complaint cited, among others, a T-Mobile job ad that targeted Facebook users between the ages of 18 and 38. Facebook was also accused of being complicit in the age discrimination by enabling advertisers to exclude individuals based on age, as well targeting users aged 21 to 55 for its own recruitment efforts.
The plaintiffs and the CWA, a communications industry labor union, contend ads that target younger workers while excluding older ones violate the Age Discrimination in Employment Act (ADEA). Such advertising practices are also illegal under “state laws prohibiting age discrimination in employment,” according to the lawsuit.
“Targeted job ads on social media violate labor laws because the company involved in the hiring process is letting older job seekers know upfront that they will not be considered,” commented employment lawyer Steven Mitchell Sack of The Law Offices of Steven Mitchell Sack. “The ADEA prohibits companies from publishing advertising indicating any preference, limitation, specification or discrimination based on age.”
The lawsuit was filed on the day The New York Times and ProPublica released a joint report on age discrimination. Their investigation found that Facebook, Google, LinkedIn and other online platforms allowed many companies to exclude certain age groups from viewing and responding to employment ads.
Facebook in particular has come under fire for failing to monitor its targeted ads. The social media site uses a micro-targeting system that has allowed advertisers to select who sees their ads based on age, race and even characteristics such as whether they dislike individuals due to their religion. In November, Facebook said it was temporarily preventing advertisers from excluding racial groups from targeted ads.
“In targeting a demographic for a job opening, there are laws that prohibit discrimination in employment based on protected classifications such as age, race, gender, national origin, religion and others,” said Mark Kluger, founding partner of employment law firm Kluger Healey, LLC. “Employers, however, may well have legitimate, non-discriminatory business reasons for seeking employees within distinct demographic categories, which can provide a defense to the age claims in the current lawsuit or in future litigation based on other protected classes.”
So far, Facebook has adopted a defensive stance to its advertising practices in light of the current lawsuit. The social media site argued in court filings that the Communications Decency Act protects the company from liability for third-party discriminatory ads.
Rob Goldman, Facebook’s vice president of ads, compared targeted online advertising to the accepted practice of placing ads on TV programs or in magazines that are known to appeal to certain demographics. He said in a statement, “Simply showing certain job ads to different age groups on services like Facebook or Google may not in itself be discriminatory … What matters is that marketing is broadly based and inclusive, not simply focused on a particular age group.”
In the same vein, a number of companies identified in the ProPublica investigative report — like Target, UPS and State Farm — defended their targeted advertising as part of a wider recruitment strategy that reached job seekers of all ages.
Legal experts are unclear how much liability Facebook and other online platforms could have. While ADEA prohibits age discrimination against workers 40 and above, it assigns liability only to employers, recruiters and advertisers.
“Social media companies like Facebook, LinkedIn and Glassdoor are likely insulated from liability in this context. These entities disclaim responsibility for the content that appears on their sites, and the law has thus far supported that concept,” said Kluger. “It is the employer that is choosing the targeted demographic, not the host which provides only the conduit. For instance, an employer that chooses to place job ads in Sports Illustrated might be seeking to avoid most women applicants, but nobody has ever questioned whether the magazine could be liable for gender discrimination for running the ad. That same concept will likely protect social media.”
Facebook users who click on an ad can view explanations for why they have been targeted with it. For example, clicking on a T-Mobile ad leads to a window that says, “There may be other reasons you’re seeing this ad, including that T-Mobile Careers wants to reach people ages 18 to 38.” However, many online applicants may be unaware that they are being filtered out of the job market without their knowledge. Because age discrimination is often hidden, it can be difficult to prove.
“Amazon and T-Mobile allegedly knowingly and willfully created these unlawful ads and, as such, may be held responsible,” said employment attorney Sack. “As for Facebook, while it argues it cannot be considered to be complicit, it should have considered the possibility that the hiring practices used by Amazon and T-Mobile were discriminatory.”
Since the lawsuit was filed, Amazon has revised several Facebook recruitment ads after it “discovered some had targeting that was inconsistent with our approach of searching for any candidate over the age of 18.” LinkedIn said on December 21 that it changed its system to prevent such targeting in job ads. Meanwhile, Google released a statement saying that ads which illegally engage in discrimination related to age or other protected classes violate the company’s policies.
“The implications of this lawsuit are far-reaching, in the sense that it will significantly determine when and where employers can post an ad,” said Daniel Kalish, an employment attorney with HKM Employment Attorneys LLP. “This case will go a long way in deciding if the discrimination laws will prohibit companies from targeting demographics that exclude a protected class.”