Today, social media platforms, including Facebook and LinkedIn, allow employers to target their job listings based on various characteristics of the users they wish to reach. As a result, employers can theoretically identify better candidates while expending fewer resources. However, these ad platforms have drawn the ire of certain plaintiffs’ law firms and, more recently, the EEOC.
Facebook launched its job application tool in February 2017. The application allowed employers to target their job postings based on a variety of criteria, including a user’s age and gender. In December 2017, the Communications Workers of America (CWA) filed suit in the Northern District of California against T-Mobile, Amazon, and Cox Communications (plus a potential class of hundreds of other employers) for allegedly excluding older workers from receiving job ads in violation of the Age Discrimination in Employment Act. That case has largely remained mired in motions to dismiss. However, beginning in January 2018, the CWA also filed at least 66 charges with the EEOC making similar allegations of age and gender discrimination.
In March 2019, Facebook and the CWA reached a settlement under which Facebook agreed to make major changes to its platform for job, housing, and credit ads in September 2019. Also in September 2019, the EEOC issued seven reasonable cause findings against employers, finding reasonable cause that those employers violated Title VII and the ADEA by targeting job ads based on gender and age.
Employers that have placed targeted job postings can make numerous factual and legal arguments against the charges affirmed by the EEOC. However, for now, the benefits of using targeted job ads are likely outweighed by the risk of drawing the attention of aggressive plaintiff’s law firms and the EEOC. Human resources professionals should consider taking a few practical steps to address the risk.
First, employers should immediately remove any job ads that target users based on their gender or being under the age of 40. This way, an employer can limit its potential exposure. Moreover, this action would likely not be admissible in any future lawsuit, as Federal Rule of Evidence 407 bars admission of subsequent remedial measures.
Second, and perhaps more importantly, human resources professionals should be proactively involved in vetting not only the language used in job postings but also the platforms on which they are placed. While internet advertising does not traditionally fall within the purview of human resources, collaborative diligence by human resources professionals can help identify and avoid potential problems created by new technologies. We are convinced that had human resources been more involved in placing the ads in question, more eyebrows would have been raised and many legal headaches would have been avoided for the 66 employers now under investigation by the EEOC.
Tory Summey is an associate with Parker Poe Adams & Bernstein LLP. and focuses on employment counseling and litigation. He has represented multistate employers in various industries, including retail, government contracting, life sciences, health care, technology, and charitable foundations. He has advised on issues related to the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), Title VII, state wage and hour laws, the Fair Credit Reporting Act (FCRA), and employee benefits issues.