Do Facebook Job Ads Aid Age Discrimination?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jan 4, 2018

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Facebook (along with other social media platforms) allows ads to be targeted to very specific audiences.

For example, if you live in Los Angeles and recently changed your marital status to “separated,” there are a lot of LA divorce lawyers who’d like you to see their ads.

The practice of reaching people who meet narrowly defined characteristics is called “microtargeting.” However, microtargeting can be problematic.

As the New York Times reported,

The social network recently grappled with revelations that advertisers were able to target Facebook users who used terms like “Jew hater” to describe themselves. But even after the company took steps to shut down those clearly offensive categories, other targeting terms remain that fall into a gray area. That includes categories like Confederate States, which are legitimate in principle but can be potentially problematic or misused in practice.

Facebook was also criticized for microtargeting voters with Russian-linked “fake news” content and discriminatory housing ads.

Age Discrimination

The latest Facebook advertising controversy involves potential age discrimination.

Verizon recently placed an ad to recruit employees for a unit focused on financial planning and analysis. 

According to the Times,

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.

Anyone who wasn’t in that age range wouldn’t see the ad.

The federal Age Discrimination in Employment Act of 1967 prohibits discrimination against people who are 40 and older in hiring or employment.

It is also illegal in many places to “aid” or “abet” age discrimination.

Communications Decency

Facebook argues that the Communications Decency Act (CDA) makes it immune from liability for discriminatory ads by its users.

Section 230 of the CDA immunizes internet companies from liability for third-party content — for example, content posted by users of a social media platform like Facebook.

Companies have invoked the CDA to avoid liability for things like sex trafficking and revenge porn posts by users.

Eric Goldman, a professor at the Santa Clara University School of Law who is an expert on Section 230, says that there’s a difference between the author of an ad saying “no one over 55 need apply” and Facebook providing microtargeting tools that govern who sees the ads.

ProPublica, a nonprofit investigative journalism organization, placed help wanted ads on Google and LinkedIn that excluded anyone over 40. After ProPublica contacted the sites about the practice, LinkedIn changed its system to prevent such age-based targeting.

According to the Times,

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.

Recently, a class action lawsuit was filed on behalf of the Communications Workers of America and its members — and on behalf of Facebook users over 40 — who may have been denied information about job openings.

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