Digital discrimination: Targeted ads don’t reach all potential applicants

by McAfee & Taft
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Since the Age Discrimination in Employment Act (ADEA) was first enacted in 1967, “help wanted” ads have evolved significantly – from classified ads in the local newspaper to listings on company websites and online job sites like ZipRecruiter.com and Indeed.com. With the more recent advent of advertising on social media platforms, the recruiting landscape has changed even further. While some employers have hailed the ability to target hiring ads on social media to specific demographics as an efficient use of their recruiting dollars, it has caused some applicants to cry foul.

Targeted ads on Facebook lead to federal lawsuit

In December 2017, Communications Workers of America and three individual plaintiffs brought a class action lawsuit in federal court in California against several large companies, including T-Mobile US Inc. and Amazon.com, Inc., alleging that the companies are discriminating against older workers by limiting the audience for their employment ads on Facebook to only reach younger users. This practice, they claim, violates state and local laws as well as the ADEA, the federal law that prohibits employers and employment agencies from discriminating based on age in employment advertising, recruiting, hiring, and other employment opportunities.

The individual plaintiffs in the case, all recently unemployed workers over the age of 40 who use Facebook, claim they have been denied the opportunity to view certain employment ads on the social media platform simply because of their age. And because they couldn’t view the ads, they couldn’t apply for the jobs.

The lawsuit specifically cited an employment ad from T-Mobile Careers that featured the photo of a young adult man with the headline “Become an Expert” and the caption “Launch a Customer Care career with the Un-carrier.” For viewers who were curious as to why this unsolicited ad was appearing on their Facebook feed, a pop-up box appeared that provided several reasons, including “T-Mobile Carriers wants to reach people 18 to 38 who live or were recently in the United States.”

Micro-targeting made possible on social media

This practice of targeting Facebook users by certain demographics or shared interests is called micro-targeting, and proponents of this advertising feature say it is what makes online advertising both efficient and effective. Some employment ads on Facebook have even targeted users using multiple criteria, including geography, as a way to narrow the field even further. One Facebook pop-up disclosure said a transportation and logistics company wanted to “reach people ages 18 to 24 who live or were recently near Allentown, Pennsylvania,” while another wanted to “reach people ages 25 to 36 who live or were recently near Washington, District of Columbia.” Even employment ads for Facebook, advertised on their own platform, have been cited for micro-targeting.

While Facebook was mentioned by name in the recent lawsuit, the social media giant isn’t alone in its ability to micro-target audiences. LinkedIn and Google also offer advertisers the ability to micro-target specific audiences based on a number of criteria. In response to the federal lawsuit and to media inquiries, though, these platforms and a number of companies have revised their online job postings and practices.

Next steps for employers

While the ability to narrowly focus a search for job applicants may appear to be an efficient use of recruiting resources, the practice also goes against the intent of the ADEA. The Act, which covers individuals age 40 and older, expressly applies to hiring and states that it is unlawful for an employer “to fail or refuse to hire” any individual because of such individual’s age. Disappointed applicants often sue claiming they were not hired because of their age.

While it’s important to note that an executive for Facebook has claimed its own age-targeted ads are part of a broader recruitment strategy designed to reach all age groups, that defense has yet to play out in court. So in the meantime, employers need to understand that online job postings are no different than ads published in a local newspaper. As such, employers should audit their online job postings and other recruiting materials for any age-specific references or placements that may limit viewing to younger viewers. Employers should also make sure their overall recruiting strategies include job advertisements in media that individuals of any age can receive or access.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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