Facebook has been exploited in the past for discriminatory ad targeting, specifically in the housing market. Now the Communications Workers of America and the ACLU are alleging that some employers used the platform to discriminate against women.
The parties filed a complaint with the federal Equal Employment Opportunity Commission against Facebook and 10 employers alleging hiring discrimination. Employers and employment agencies are not permitted to selectively exclude job candidates on the basis of gender, age, religion and other “protected categories.”
What happened? The complaint asserts that the employers posted job ads on Facebook for a range of positions, including construction laborers, truck drivers, police and retail sales positions that were targeted exclusively to men and thereby discriminated against women. The parties provided examples of the ads in the complaint, which do not appear to have been equally shown to female candidates.
Facebook’s ad-targeting capabilities allow particular demographic groups to be targeted (or excluded) by age, location, profession, gender, etc. However, Facebook’s terms prohibit discriminatory targeting and the company has removed illegal ads in the past when discovered. It’s not entirely clear how long these were running, however.
Is Facebook an employment agency? Attorneys for the complainants argue that Facebook is effectively an “employment agency” and should be liable for the discriminatory targeting. Internet publishers have historically relied upon the Communications Decency Act to protect them against claims of liability for content created or posted by platform users and third parties.
Whether Facebook can be considered an “employment agency” or recruiter under federal regulations is an open question according to employment lawyers and other experts. Beyond federal anti-discrimination law, most states have comparable laws that could be used to bring similar administrative complaints or file lawsuits against the company.
Why it matters to marketers: In sensitive categories like recruiting Facebook will likely be required to narrow or limit ad targeting options to avoid similar complaints in the future. It might also require more burdensome disclosures and assurances from marketers about their campaigns to insulate itself against potential future claims and lawsuits.