Jan 29, 2018

Targeted Advertising: Effective or Discriminatory?

Targeted Advertising: selecting the audience

The Communication Workers of America (“CWA”) as well as three named plaintiffs filed suit against named defendants and an unspecified class of “hundreds of major American employers and employment agencies,” for alleged age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), that protects individuals 40 and older from discrimination on the basis of their age.  The basis for CWA’s claim is that the employers allegedly utilized targeted Facebook advertising that expressed a preference for younger workers.

For the uninitiated, Facebook inserts various advertisements along with user-generated content into a user’s News Feed.  Facebook boasts that its advertising allows businesses to choose their audience based on demographics, behaviors, and contact information.  Specifically, Facebook’s Ads Manager allows for the business to “[f]ind people based on traits such as age, gender, relationship status, education, workplace, job titles and more.”  The ability to target advertisements so that they reach the right audience is welcome news for businesses seeking to market products and services with niche markets; however, CWA claims that targeted job listings may be a form of discrimination.

Thanks to Facebook’s push for transparency, users can see why they are seeing a certain advertisement.  For some, like one defendant’s advertisement listed in CWA’s complaint, Facebook allegedly told the user that, among other reasons, the defendant “wants to reach people ages 18 to 38 who live or were recently in the United States.”  CWA contends that this type of advertisement discriminates against individuals on the basis of their age and has “denied millions of workers the opportunity to learn about and obtain employment opportunities.”

Pursuant to 29 USC § 623(e), it is unlawful to advertise jobs by indicating a “preference, limitation, specification or discrimination, based on age.”  It should be noted that this provision of the ADEA has garnered minimal discussion in the federal courts, and there are very few cases to look to for judicial guidance.  That being said, the Code of Federal Regulations does include a provision that “[h]elp wanted notices or advertisements may not contain terms and phrases that limit or deter the employment of older individuals.  Notices or advertisements that contain terms such as age 25 to 35…” violate the ADEA. 29 C.F.R. § 1625.4.

CWA’s legal challenge may stumble over the fact that there is no age restriction, limitation, or preference referenced in the advertisement itself.  After all, it is Facebook’s explanation of why the user is seeing the advertisement, not one defendant’s advertisement that displays any preference for age.

At this early stage, before the companies have filed responses to the complaint, a more definite statement of the positions is difficult.  However, as a precaution, until the issues are decided, employers who choose to advertise employment positions on Facebook may consider leaving in place Facebook’s default age range (18 to 65+) for future postings.

If you have any questions or concerns on how these decisions may impact your business practices or have any other questions please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

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