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Using Facebook job ads may enable age discrimination

January 6, 2018

By Kristen Cifolelli, courtesy of SBAM Approved Partner ASE

Employers who use Facebook job ads to help with their recruiting practices need to be cautious in how they use this approach to reach applicants.  A recent federal court lawsuit filed in San Francisco charges 13 companies including Amazon, T-Mobile, and Cox Communications, Inc. with using Facebook’s ad targeting tools to exclude older Americans from job opportunities.  
When setting up ads on Facebook, users are provided options on how to choose the people they want to reach.  The options include things such as interests, behaviors, geographic location, demographics such as age, gender, relationship status, education, workplace and job titles to name a few. The complaint describes that when companies use Facebook’s targeting technology and use age as an option, it makes job ads invisible to older Facebook users, and therefore; denies older workers job opportunities.
The suit was brought by the Communications Workers of America along with three American Workers, Linda Bradley, Maurice Anscombe, and Lura Callahan, who range in age from 45 to 67.  The suit is asking that these ad targeting practices be declared in violation of employment laws prohibiting age discrimination.  They are seeking class action status to represent Facebook users 40 or older who may have been denied the opportunity to learn about open positions as a result of the ad targeting.
According to the complaint, “This pattern or practice of discrimination denies job opportunities to individuals who are searching for and interested in jobs, reduces the number of older workers who apply for jobs with the offending employers and employment agencies, and depresses the number of older workers who are hired.”
The complaint included images of employment recruitment ads that when clicked upon by a user, bring up a screen specifying the age group to which the ad was targeted.  Specific examples cited in the lawsuit, include a T-Mobile job ad, which was targeted to Facebook users ages 18-38.  A screen shot showed Facebook targeting job ads for its own openings to people ages 21-55. 
Facebook defends its advertising system saying they “completely reject the allegation that these advertisements are discriminatory.”  According to Rob Goldman, Facebook’s Vice President of Ads, “These individual ads are part of broader-based recruitment efforts designed to reach all ages and backgrounds.  Used responsibly, age-based targeting for employment purposes is an accepted industry practice and for good reason: it helps employers recruit and people of all ages find work.”  As for Facebook’s ad-targeting tools, he said, “Simply showing certain job ads to different age groups on services like Facebook or Google may not in itself be discriminatory — just as it can be OK to run employment ads in magazines and on TV shows targeted at younger or older people.”
The counter argument to Facebook’s position is that when you run an ad in a magazine or other publication that is targeted to certain demographics, individuals can still gain access to those publications and see those ads.  When social media targeting technology is used, individuals in the impacted demographic ranges have no idea the ads are being run and have no easy way to access them.
A joint investigation between The New York Times and ProPublica on ad targeting technology released at the same time the lawsuit was filed, revealed that Facebook is not the only tech company providing ad targeting options.  According to reporters Julia Angwin, Noam Scheiber, and Ariana Tobin, “ProPublica bought job ads on Google and LinkedIn that excluded audiences older than 40 – and the ads were instantly approved.  Google said it does not prevent advertisers from displaying ads based on the user’s age.  After being contacted by ProPublica, LinkedIn changed its system to prevent such targeting in employment ads.”
In order to stay out of hot water, if employers decide to use social media job ads for recruiting purposes they should consider talking to legal counsel regarding the use and impact of social media targeting technology.  As a best practice, employers should make sure that they don’t post ads just in areas that target based on age.  Every job posted on Facebook should also appear on your organization’s web page where anyone can see it.

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