Facebook Job Ads Raise Concerns About Age Discrimination

A recent investigation reveals that dozens of employers, including Amazon, Target, Goldman Sachs and Facebook itself, placed recruitment advertisements on Facebook that could only be viewed by particular age groups.

This practice has prompted several legal cases alleging age discrimination. A class action suit was recently filed on behalf of the Communications Workers of America (CWA) as well as all Facebook users 40 or older who were excluded from job advertisements and therefore, denied the opportunity to learn about job openings.

The Age Discrimination in Employment Act
The Age Discrimination in Employment Act prohibits age discrimination against people age 40 or older in any aspect of employment. However, the statute only requires employers or employment agencies to assume liability for such discriminatory acts. The CWA lawsuit argues that although Facebook is not primarily an employment agency, it is essentially playing the role of one by collecting employee data and helping employers to locate candidates.

The Communications Decency Act
Facebook argues that it is not liable according to Section 230 of the Communications Decency Act, a federal law that shields internet companies from liability for third-party content. Facebook says that advertisers are responsible for their content as well as the targeting criteria they use. However, a professor at the Santa Clara University School of Law who has extensive knowledge of the statute claims that the law is unclear regarding Facebook’s liability for offering the age-targeted customization option.

While Facebook would not be liable for parameters set by the employer in the job advertisement, it may be liable for contributing to the development of the advertisement. One case that provides some guidance is a fair housing case in which the federal appeals court held that platforms negate their immunity when they help to develop unlawful content. Facebook offers microtargeting, a cost-effective, efficient system that allows advertisers to target their preferred audience. It could be argued that by offering advertisers the option of age-targeted customization, Facebook played a role in generating the content and thereby negated its immunity.

Liability for Employment Ads with Age-Based Targeting
Facebook, as well as the other companies, may also face liability under state or local anti-discrimination statutes that prohibit the aiding or abetting of discriminatory acts. However, Facebook claims that age-based targeting is a useful, accepted industry practice and does not plan on blocking advertisers from placing age-targeted ads. Other companies have stated that this issue prompted them to change their recruiting ads or to discontinue use of the microtargeting service altogether. Facebook has announced that it will now require advertisers to self-certify that their ads are compliant with anti-discrimination laws, however it is uncertain whether those certifications will be monitored for accuracy.

In New Jersey, age discrimination is prohibited by both the Age Discrimination in Employment Act and the New Jersey Law Against Discrimination (NJLAD). Older employees or applicants may not be discriminated against based on their age and they must be entitled to the same benefits as other employees.

ABOUT THE AUTHOR: Richard D. McComber
Richard D. McComber was admitted to the New Jersey and Federal District Court Bars and then served as a Captain in the United States Army, Judge Advocate General Corps, for three years in Washington, D.C. Upon his discharge from the Army, he joined the law firm of Giordano, Giordano & Halleran, later Giordano, Halleran & McOmber. Thereafter, he left that firm to start a new firm with his wife, Adrienne H. McOmber. His primary practice areas include business law, employment law, estate planning, land use, real estate, sexual harassment and hostile work environment, wills, and trusts.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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