Can Technology Be Used To Limit Who Sees An Employment Ad?

Plaintiffs allege targeted job ads discriminate against them.

Amazon, T-Mobile, Cox Communications and Media Group, Ikea, Enterprise Rent-A-Car and the University of Maryland Medical Center are defendants in an age bias suit.

These companies are among the defendants sued by the Communication Workers of America and three others claiming they were subjected to age discrimination when the defendants posted employment ads on Facebook, seemingly targeted to younger applicants.

Facebook itself is not a named defendant in the action, filed in the US District Court for the Northern District of California.

The class action was filed last December by Peter Romer-Friedman, a Civil Rights attorney with the Washington, DC office of Outten & Golden. In May, Romer-Friedman amended the original complaint to expand CWA’s efforts to put an end to what they call age bias in online recruitment.

The amendments Romer-Friedman recently filed expand the scope of the plaintiff’s attack on how employers utilize Facebook in their attempt to attract job candidates. The amended complaint adds federal age bias claims under the Age Discrimination in Employment Act on behalf of workers age 40 and up who were prevented from seeing job ads with employers, employment agencies and Facebook that were visible to younger applicants. Their initial complaint only had only asserted these claims under certain state laws.

Further, the new filing alleges that Facebook’s algorithm itself discriminates against older job applicants because it determines who receives which advertisements.

According to Romer-Friedman, "The lawsuit alleges that hundreds of major employers have hidden job ads from older workers because of workers' ages when recruiting workers via Facebook.  If our lawsuit is successful and companies stop excluding older workers from their recruiting via social media, the doors of opportunity will be opened to tens of millions of Americans who are now affected by this practice.  It is both unlawful and morally bankrupt to exclude people from receiving job recruitment based on their age or other protected characteristics.  Our civil rights laws were enacted decades ago to stop these types of schemes that exclude entire groups of people from economic opportunity in America."

Marie-Joëlle C. Khouzam, an Employment Law partner with the Columbus office of Bricker & Eckler LLP, says the case fascinates her because of the “convergence of technology and law.”

Employers are advised to conduct recruiting efforts within the context of Title VII or applicable state laws, regardless of the means or platform through which the recruiting is done, she says.

The plaintiffs are alleging that a multitude of employers and employment agencies are illegally targeting their employment ads on Facebook in such a way that excludes older applicants. In doing so, older applicants are not being made aware of job opportunities, while younger candidates are. That allegedly discriminatory behavior constitutes an infringement of federal, state and local laws that prohibit age discrimination in employment advertising, recruiting and hiring.

“Leveraging recruiting platforms whose back office operations (or algorithms) an employer or recruiter may not fully comprehend could nonetheless implicate an employer viewed as disregarding the obligation not to discriminate against or limit employment opportunities,” sums Khouzam.