Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 19, 2019, Facebook settled several lawsuits brought by the American Civil Liberties Union (ACLU), the Communications Workers of America, and various housing groups related to the placement of employment advertisements on Facebook’s website aimed at selected users based on their age or gender.
Generally, employment advertisements are unlawful if they require applicants to be a certain age or gender, or include exclusionary language to dissuade certain groups of people from applying.1 Placing ads in certain locations (known as “targeted advertisements”), however, can be lawful as long as the advertisement itself is manner-neutral in its wording. An example is posting jobs through a college’s career services department or in publications that may be geared towards a certain demographic.2
The plaintiffs in the Facebook lawsuits alleged that employers were using Facebook’s targeted advertising tools to discriminate against certain groups by denying them the ability to see and apply for available jobs or housing. Facebook and several employers responded by asserting that they were using the ad-targeting system to find job seekers who were more likely to be interested in the positions and not for the purpose of discrimination.
Nonetheless, as part of the settlement, Facebook has agreed to develop a new advertising portal that will place significant limits on an employer’s ability to place ads based on personal characteristics. The portal will be a separate platform for ads describing housing, employment, and credit opportunities so that advertisers can no longer use age ranges, gender, or demographics associated with race or heritage to limit who will see job postings. According to the joint statement from Facebook and the plaintiffs, Facebook also agreed to retool its “Lookalike Audience” feature, which helps advertisers identify Facebook users similar to a business’s current customers, to “no longer consider gender, age, religious views, zip codes, Facebook Group membership, or other similar categories” in its search algorithm.
The settlement also provides that Facebook will ask advertisers to certify adherence not only to the platform policies, but to all applicable civil rights protections and laws. Other provisions allow the plaintiffs to test the advertising system to ensure compliance to the settlement terms and monitor Facebook’s progress over three years with periodic reviews by advocacy groups.
The settlement resolves three lawsuits: Communications Workers of America v. Facebook, Spees v. Facebook, and Riddick v. Facebook. Other cases are still pending against individual employers both in federal courts and before the Equal Employment Opportunity Commission.
Going forward, employers using on-line advertising platforms should analyze fully the issue of whether the platform itself complies with applicable law with respect to the ads being run and seek legal advice with respect to any questions that arise.
1 29 U.S.C. § 623(e); see also 29 C.F.R. § 1625.4.
2 See e.g., E.E.O.C. v. Marion Motel Assocs., 763 F. Supp. 1338, 1340 (W.D.N.C. 1991).