“Their business relies on this microtargeting; the problem is microtargeting can be discrimination,” explains a spokesperson for the Communications Workers of America (CWA). “Civil rights don’t stop when you turn on your computer.”
The CWA has filed a federal class action against Facebook, T-Mobile, Amazon and “similarly situated employers and employment agencies” who use microtargeting to make their job ads visible only to those of a certain age — generally, an age under 40.
Savvy users can identify the targeted audience of Facebook ads by clicking a series of links.
“My jaw dropped as I saw some of the ads we were able to uncover,” says the CWA spokesperson, who then cited for NPR a T-Mobile recruitment ad targeted exclusively to 18- to 38-year-olds.
Law prohibits age specifications
When employers and recruiters micro target job ads to people under 40, they may very well be violating the Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act (FEHA), both of which prohibit discrimination against people 40 and over. Virtually all employers are subject to the federal ADEA — private sector employers, local, state and federal agencies, employment agencies and labor organizations.
The ADEA and FEHA apply during recruitment, pre-employment inquiries and hiring — and they apply to job advertisements and notices. According to the EEOC, the ADEA prohibits age preferences, specifications or limitations in job notices and advertisements. The FEHA is generally held to be more protective of employees than the ADEA.
It seems straightforward that if these laws don’t allow age preferences, specifications or limitations in employment ads, targeting employment ads exclusively to certain age groups would violate them. However, ad microtargeting is something of a new frontier in discrimination, so the CWA case could be the first lawsuit to ask this specific question.
Facebook forced to change what it allows
In a December blog post, Facebook had defended microtargeting as a legal part of a job recruitment strategy that does not discriminate overall.
Last month, however, a Washington state attorney general’s investigation led Facebook to sign a nationwide, binding agreement on microtargeting. The social media giant pledged to stop letting job advertisers exclude people based on sexual orientation, nationality, race, religion or other protected groups. People 40 and over are legally a protected group in this regard.
If Facebook follows through on that pledge, it could be dropped from the CWA’s class action. That wouldn’t keep the lawsuit from moving forward against other platforms that allow microtargeting.