Suit alleges age discrimination in Facebook ads

Plaintiffs charge employers targeting younger workers on the popular site

Companies are routinely using Facebook ads to target younger job seekers — and now that practice has Amazon, T-Mobile, Cox Communications and others facing a lawsuit charging that they discriminate against older workers.

Three workers andthe Communications Workers of America (CWA) are asking that such practices be declared in violation of “various state laws prohibiting age discrimination in employment,” according to a lawsuit filed Wednesday in federal court in San Francisco. The plaintiffs also name “similarly situated employers and employment agencies” — including Facebook.

The lawsuit is already making employers think twice about targeting job ads at specific

age groups.

“We have a longstanding practice of not commenting on pending litigation,” an Amazon spokeswoman said Thursday. “However, 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. We have corrected those ads.”

T-Mobile and Cox Communications said they don’t comment on pending litigation.

The lawsuit came on the same day that a ProPublica/ New York Times report detailed how companies are able to exclude older workers in employment ads on Facebook and other platforms such as LinkedIn and Google.

But LinkedIn said Thursday it now requires advertisers to self-certify if an ad is related to employment. If so, the advertisers have to check abox andagree theywillnot discriminate based on age. Once they do so, the option to target by age will become available.

A Google spokesperson said in a statement that ads which illegally discriminate based on age or any other protected class violate its policy.

“When we find ads that violate our policies, we remove them,” the company said.

The lawsuit also points to other companies, alleging they include “hundreds of major American employers and employment agencies that, upon information and belief, routinely exclude older workers from receiving their employment and recruiting ads on Facebook, and thus deny older workers job opportunities.”

Facebook allows advertisers to target age groups that exclude workers who are 40 years old or older, the lawsuit alleges.

In one job ad cited in the lawsuit, T-Mobile reportedly used Facebook to target “people ages 18 to 38 who live or were recently in the United States.”

“It is not easy for aworker to discover this, because it’s being hidden from them,” said Jody Calemine, CWA’s general counsel. “You’re literally not seeing discrimination if you’re being filtered out of the job market this way.”

Facebook’s vice president of ads, Rob Goldman, defended Facebook’s use of age targeting in its own employment ads and its tool that allows others to do the same.

“These individual ads are part of broader-based recruitment efforts designed to reach all ages and all backgrounds,” Goldman wrote in a blog post about Facebook’s use of age-targeted employment ads.

As for Facebook’s ad-targeting tools, he said, “Simply showing certain job ads to different age groups on services like Facebook or Google may not in itself be discriminatory — just as it can be OK to run employment ads in magazines and on TV shows targeted at younger or older people.”

EricGoldman, a professor and director of Santa Clara University’s High Tech Law Institute, took a different view.

“Facebook’s response conflates those two different issues and tries to treat them the same,” he said Thursday. As ProPublica pointed out in its reportWednesday, online ad targeting can exclude people in ways they’d never know, while anyone can buy a print magazine and see all the ads in it.

Lawyers for the plaintiffs said the ads cited in the lawsuit suggest that these companies wanted to hire younger workers instead of older ones.

“Age discrimination is something hidden so that people who apply for jobs never find outwhy they were never considered or interviewed,” said Peter RomerFriedman, an employment lawyer for Outten & Golden. “We now know why.”

He said the union and the law firm are also looking at ads shown on other platforms, such as Google and LinkedIn. On Facebook, though, users can seewhy an ad is being targeted at them.

Facebook’s ability to drill down when targeting ads has been shown to be so effective it has led to trouble for the company. For example, ProPublica last year found that the company’s ad tools allowed those buying housing-related ads to exclude people by “ethnic affinities.”

Last month, Facebook’s Chief Operating Officer Sheryl Sandberg said the company would pause its tools’ ability to exclude ad targets based on race and ethnicity.

Given the scrutiny of Facebook’s ad tools, Goldman, the professor, said he would “expect Facebook to have a catharsis about why it’s allowing age and gender targeting.”

Jean Hyams, immediate past chair and president of the California Employment Lawyers Association and a partner at Oakland-based Levy Vinick Burrell Hyams, said this case is another example of “changes in technology outpacing the state of the law.”

“What Facebook is offering is the ability to say ‘old people need not apply’ without actually saying it,” she said.