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Facebook Job Ads Raise Concerns About Age Discrimination

Posted on: February 5th, 2018
Posted by:  Gina Salamone

Recently, Verizon placed an ad on Facebook to recruit applicants for a unit focused on financial planning and analysis. The ad showed a smiling, millennial-aged woman seated at a computer and promised that new hires could look forward to a rewarding career in which they would be “more than just a number.”
 
Some relevant numbers were not immediately evident. The promotion was set to run on the Facebook feeds of users 25 to 36 years old who lived in the nation’s capital, or had recently visited there, and had demonstrated an interest in finance. For a vast majority of the hundreds of millions of people who check Facebook every day, the ad did not exist.
 
Verizon is among dozens of the nation’s leading employers — including Amazon, Goldman Sachs, Target and Facebook itself — that placed recruitment ads limited to particular age groups, an investigation by ProPublica and The New York Times has found. The ability of advertisers to deliver their message to the precise audience most likely to respond is the cornerstone of Facebook’s business model. But using the system to expose job opportunities only to certain age groups has raised concerns about fairness to older workers.
 
Several experts questioned whether the practice is in keeping with the federal Age Discrimination in Employment Act of 1967, which prohibits bias against people 40 or older in hiring or employment. Many jurisdictions make it unlawful to “aid” or “abet” age discrimination, a provision that could apply to companies like Facebook that distribute job ads.
 
Facebook defended the practice. “Used responsibly, age-based targeting for employment purposes is an accepted industry practice and for good reason: it helps employers recruit and people of all ages find work,” said Rob Goldman, a Facebook vice president.
 
The revelations come at a time when the unregulated power of the tech companies is under increased scrutiny, and Congress is weighing whether to limit the immunity that it granted to tech companies in 1996 for third-party content on their platforms.
 
Facebook has argued in court filings that the law, the Communications Decency Act, makes it immune from liability for discriminatory ads.
 
Although Facebook is a relatively new entrant into the recruiting arena, it is rapidly gaining popularity with employers. Earlier this year, the social network launched a section of its site devoted to job ads. Facebook allows advertisers to select their audience, and then Facebook finds the chosen users with the extensive data it collects about its members.
 
The use of age targets emerged in a review of data originally compiled by ProPublica readers for a project about political ad placement on Facebook. Many of the ads include a disclosure by Facebook about why the user is seeing the ad, which can be anything from their age to their affinity for folk music.
 
The precision of Facebook’s ad delivery has helped it dominate an industry once in the hands of print and broadcast outlets. The system, called microtargeting, allows advertisers to reach essentially whomever they prefer, including the people their analysis suggests are the most plausible hires or consumers, lowering the costs and vastly increasing efficiency.
 
Other tech companies also offer employers opportunities to discriminate by age. ProPublica bought job ads on Google and LinkedIn that excluded audiences older than 40 — and the ads were instantly approved. Google said it does not prevent advertisers from displaying ads based on the user’s age. After being contacted by ProPublica, LinkedIn changed its system to prevent such targeting in employment ads.
 
The practice has begun to attract legal challenges. On Wednesday, a class-action complaint alleging age discrimination was filed in federal court in San Francisco on behalf of the Communications Workers of America and its members — as well as all Facebook users 40 or older who may have been denied the chance to learn about job openings. The plaintiffs’ lawyers said the complaint was based on ads for dozens of companies that they had discovered on Facebook.
 
Some companies defended their targeting as a part of a broader recruitment strategy that reached candidates of all ages. The group of companies making this case included Facebook itself, which ran career ads on its own platform, many aimed at people 25 to 60.
 
It is against the law to discriminate against workers 40 and older in hiring and recruitment. But ProPublica found dozens of companies that bought Facebook ads aimed at recruiting workers within limited age ranges.
 
Verizon Careers targeted an ad at Facebook users interested in finance, “based on activity such as liking Pages or clicking on ads,” according to Facebook’s description of why a user would see this ad. Verizon did not respond to requests for comment.
 
UPS said its age-targeted ad was part of a broader recruitment strategy. “UPS advertises across many mediums and duplicates mediums in geographic markets where we are attempting to hire employees,” said Steve Gaut, the company’s vice president for public relations. He added that UPS is a federal contractor and complies with federal anti-discrimination regulations. Facebook Careers targeted this ad at people who may be similar to their customers, as well as people 21 to 55 who live in the United States.
 
After being contacted by ProPublica and The Times, other employers, including Amazon, Northwestern Mutual and the New York City Department of Education, said they had changed or were changing their recruiting strategies.
 
“We recently audited our recruiting ads on Facebook and discovered some had targeting that was inconsistent with our approach of searching for any candidate over the age of 18,” said Nina Lindsey, a spokeswoman for Amazon, which targeted some ads for workers at its distribution centers between the ages of 18 and 50. “We have corrected those ads.”
 
Several companies argued that targeted recruiting on Facebook was comparable to advertising opportunities in publications like the AARP magazine or Teen Vogue, which are aimed at particular age groups. But this obscures an important distinction. Anyone can buy Teen Vogue and see an ad. Online, however, people outside the targeted age groups can be excluded in ways they will never learn about.
 
Looking for ‘Younger Blood’
 Although LinkedIn is the leading online recruitment platform, according to an annual survey by SourceCon, an industry website, Facebook is rapidly increasing in popularity for employers.  One reason is that Facebook’s sheer size — two billion monthly active users, versus LinkedIn’s 530 million total members — gives recruiters access to types of workers they can’t find elsewhere.  There are also millions of hourly workers who have never visited LinkedIn, and may not even have a résumé, but who check Facebook obsessively.
 
Deb Andrychuk, chief executive of the Arland Group, which helps employers place recruitment ads, said clients sometimes asked her firm to target ads by age, saying they needed “to start bringing younger blood” into their organizations. “It’s not necessarily that we wouldn’t take someone older,” these clients say, according to Ms. Andrychuk, “but if you could bring in a younger set of applicants, it would definitely work out better.” Ms. Andrychuk said that “we coach clients to be open and not discriminate” and that after being contacted by The Times, her team updated all their ads to ensure they didn’t exclude any age groups.
 
But some companies contend that there are permissible reasons to filter audiences by age, as with an ad for entry-level analyst positions at Goldman Sachs that was distributed to people 18 to 64. A Goldman Sachs spokesman, Andrew Williams, said showing it to people above that age range would have wasted money: roughly 25 percent of those who typically click on the firm’s untargeted ads are 65 or older, but people that age almost never apply for the analyst job.
 
The Question of Liability
 In various ways, Facebook and LinkedIn have acknowledged at least a modest obligation to police their ad platforms against abuse.
 
Earlier this year, Facebook said it would require advertisers to “self-certify” that their housing, employment and credit ads were compliant with anti-discrimination laws, but that it would not block marketers from purchasing age-restricted ads. Still, Facebook didn’t promise to monitor those certifications for accuracy. And Facebook said the self-certification system, announced in February, was still being rolled out to all advertisers.
 
LinkedIn, in response to inquiries by ProPublica, added a self-certification step that prevents employers from using age ranges when placing an employment ad, unless they affirm that the ad is not discriminatory.
 
With these efforts evolving, legal experts say it is unclear how much liability the tech platforms could have. Some civil rights laws, like the Fair Housing Act, explicitly require publishers to assume liability for discriminatory ads.
 
But the Age Discrimination in Employment Act assigns liability only to employers or employment agencies, like recruiters and advertising firms.
 
The lawsuit filed against Facebook on behalf of the communications workers argues that the company essentially plays the role of an employment agency — collecting and providing data that helps employers locate candidates, effectively coordinating with the employer to develop the advertising strategies, informing employers about the performance of the ads, and so forth.
 
Regardless of whether courts accept that argument, the tech companies could also face liability under certain state or local anti-discrimination statutes. For example, California’s Fair Employment and Housing Act makes it unlawful to “aid, abet, incite, compel or coerce the doing” of discriminatory acts proscribed by the statute.
 
The question may hinge on Section 230 of the federal Communications Decency Act, which protects internet companies from liability for third-party content. Tech companies have successfully invoked this law to avoid liability for offensive or criminal content — including sex trafficking, revenge porn and calls for violence against Jews. Facebook is currently arguing in federal court that Section 230 immunizes it against liability for ad placement that blocks members of certain racial and ethnic groups from seeing the ads.
 
“Advertisers, not Facebook, are responsible for both the content of their ads and what targeting criteria to use, if any,” Facebook argued in its motion to dismiss allegations that its ads violated a host of civil rights laws. The case does not allege age discrimination.
 
According to a federal appellate court decision in a fair-housing case, a platform can be considered to have helped “develop unlawful content” that users play a role in generating, which would negate the immunity.


This article appears courtesy of the National Academy of Elder Law Attorneys (NAELA), https://www.naela.org/.
  
Our firm is dedicated to helping seniors and their loved ones work through issues and implement sound legal planning to address them. If we can help in any way, please don’t hesitate to contact our office at (630) 221-1755.
 
 
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