Recruiting top talent to your organization can be a difficult task. Between the historically low unemployment rate and the cottage industry of jobs websites out there, it can be challenging to locate strong candidates and persuade them to join your business. In an effort to spread their message as widely as possible, an increasing number of employers are using social media to advertise job openings. However, a recent claim filed against Facebook provides employers with an important lesson about how antidiscrimination laws can be applied to our modern, social-media-filled world.
Background on Discrimination and Ads
Federal law prevents employers or employment agencies from discriminating against protected classes, such as gender. This concept has long been applied to “help wanted” advertisements and job postings. The classic example of an impermissible advertisement would be an ad for an administrative assistant position encouraging females to apply.
A less obvious example that is equally illegal according to guidance published by the Equal Employment Opportunity Commission (EEOC): An advertisement that encourages “recent college graduates” to apply may be challenged for being biased against older workers.
Applying the Concept to Social Media
What we find interesting about the recent claim against Facebook is that the advertisements in question do not, on their face, suggest that individuals of any particular protected classification would be favored or disfavored in the recruitment process. Nevertheless, lawyers have filed a class action lawsuit against Facebook and various employers.
As you may know, Facebook permits advertisers to target certain demographics with their ads. Your marketing department almost certainly uses these tools to make sure your product advertisements reach your company’s intended audience. However, the lawsuit claims that certain employers are using these same tools to target advertisements about job openings to men but not women. (Facebook has faced similar allegations relating to age discrimination in the past.)
The lawyers for the group of jobseekers laid out how the alleged discrimination worked. A group of job hunters performed job searches through Facebook. When they selected advertisements for various positions, they clicked on a standard Facebook disclosure relating to the ads that explained why they received them. The discriminatory ads in question disclosed that the jobseekers saw them because they were men of a certain age in a certain location. Women in the same area, searching the same variables, would not have received the same advertisements.
Men would receive advertisements for manual labor, mechanical positions, or even sports marketing representatives, while women might see only home health or childcare openings. The lawyers argue that, when purchasing an ad through Facebook, an employer has the choice of selecting which gender it wishes to see its advertisement. Title VII of the Civil Rights Act of 1964 prohibits gender discrimination in employment advertising, which the parties bringing this charge allege Facebook’s targeted advertising amounts to. In addition, Facebook receives advertising revenue from these employers, potentially violating state laws that forbid aiding and abetting discrimination.
Implications for Facebook
This charge raises the interesting question of whether Facebook, with over two billion active monthly users, can or should be considered an employment agency. Many hourly workers, lacking resumes or steady means of finding hourly work, turn to Facebook and other social media sites. Lawyers for the jobseekers in the case argue that Facebook, with access to years of users’ data, can target individuals with a high degree of precision to match them with advertisements. In this way, the lawyers contend, Facebook is in effect acting as an employment agency.
Federal law prevents employers or employment agencies from discriminating based on protected classes such as gender. LinkedIn and Google, according to The New York Times, also allow advertisers to exclude men or women from receiving ads. While the latter have stated they will change their policies moving forward, Facebook has only said it is reviewing the matter.
In its defense, Facebook has turned to Section 230 of the Communications Decency Act, a federal law that protects Internet companies from liability for content generated by third parties. Under this law, websites can offer platforms for controversial speech without worry of a lawsuit. However, this law doesn’t protect entities responsible for the creation or development of illegal or discriminatory content. If the EEOC finds that Facebook’s algorithms matching ads to potential employees—and its close relationship with the employers posting such ads—amount to aiding in the creation of these ads, Facebook will have a difficult time arguing that it wasn’t guilty of perpetrating or allowing discriminatory behavior. All social media companies should review their policies—and algorithms—to make sure that they are not guilty of discrimination against protected classes.
Meanwhile, some businesses have defended their advertising practices by arguing that their Facebook postings are just one piece of a broad effort to spread the word across multiple media and platforms. Taken as a whole, they claim, their advertisements are designed to reach people of all genders, races, and ages.
Takeaway
We will continue to monitor this case as it works its way through the courts. In the meantime, you should review your job advertising practices and the policies and practices of any third-party websites you use to make sure they aren’t restricting the ads to users of certain ages, genders, or races. This class action suggests it may not be enough to double-check that the text of the advertisement is nondiscriminatory. You may also need to be sure that the advertisement will be served to a diverse population.
Connor Beatty is an employment law attorney with Brann & Isaacson and a contributor to Maine Employment Law Letter. He may be contacted at CBeatty@brannlaw.com.
Aiden French is a paralegal with Brann & Isaacson in the firm’s Lewiston, Maine, office. He may be contacted at afrence@brannlaw.com.