Diversity Insight

Digital Discrimination: Targeted Ads Don’t Reach All Potential Applicants

“Help Wanted” ads have evolved significantly since the Age Discrimination in Employment Act (ADEA) was first enacted in 1967—from classified ads in the local newspaper, to listings on company websites and online jobs sites like ZipRecruiter.com and Indeed.com. With the recent advent of advertising on social media platforms, the recruiting landscape has changed even further. Some employers have hailed the ability to target hiring ads on social media to specific demographics as an efficient use of their recruiting dollars, but the new recruiting tool has caused some job applicants to cry foul.

Targeted Ads on Facebook Lead to Federal Lawsuit

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

The individuals who joined in the lawsuit, 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 cites an employment ad from T-Mobile Careers that features a photo of a young adult man with the headline “Become an Expert” and the caption “Launch a Customer Care career with the Un-carrier.” Viewers who were curious about why the unsolicited ad was appearing on their Facebook feed could access a pop-up box that provided several reasons, including “T-Mobile Careers wants to reach people 18 to 38 who live or were recently in the United States.”

Microtargeting Made Possible on Social Media

The practice of targeting Facebook users through certain demographics or shared interests is called microtargeting, and proponents of the advertising strategy say it’s what makes online advertising both efficient and effective. Some employment ads on Facebook have even targeted applicants 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 the company’s own platform, have been cited for microtargeting.

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

Next Steps for Employers

The ability to narrowly focus a search for job applicants may appear to be an efficient use of recruiting resources, but the practice goes against the intent of the ADEA. The federal age discrimination law, which covers individuals who are 40 or older, expressly applies to hiring, stating that it’s unlawful for an employer “to fail or refuse to hire” any individual because of his age. Disappointed applicants often sue, claiming they weren’t hired because of their age.

While it’s important to note that an executive at 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. In the meantime, employers need to understand that online job postings are no different from ads published in a local newspaper. Consequently, you should audit your online job postings and other recruiting materials for any age-specific references or placements that may limit access to younger viewers. You should also make sure your overall recruiting strategies include job advertisements in media that individuals of any age can receive or access.

Tony Puckett is an attorney with McAfee & Taft, practicing in the firm’s Oklahoma City, Oklahoma, office. He may be reached at tony.puckett@mcafeetaft.com.