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By: Brenton S. Bean
So say putative class action plaintiffs in the Northern District of California. See Communications Workers of America et al v. T-Mobile US, Inc., et al, Case No. 5:17-cv-7232 (N.D. Ca), filed Dec. 20, 2017. Plaintiffs assert that Facebook has become the modern employment agency, providing not only a platform, but also data and strategies to help employers find candidates. The lawsuit alleges that Facebook allows, and in some instances requires, a target audience be defined, which includes age restrictions. In addition, Facebook uses its own massive database and algorithms to determine which users will see the ads, often on the basis of age. This practice of “microtargeting” advertisements for employment discriminates against older workers, plaintiffs say.
Shortly before the lawsuit was filed, the New York Times ran an article regarding Facebook advertising and age discrimination. Facebook and other social media sites have recently become more popular means by which employers advertise for job openings. The Times story indicates many companies use Facebook’s ability to target its users by demographics, such as age, and therefore have discriminated against job applicants by restricting the scope of their Facebook ads to younger Facebook users. Interestingly, that use of an age restriction is not always limited to cases where the advertiser requests such a restriction. Facebook also takes the parameters identified by the employer and uses its own statistical methodologies to target the ad. That means age restrictions may have been used in advertisements without the advertiser’s knowledge, according to the claim.
The scope of the case is potentially enormous. First, the putative class size is immense. The class as defined includes all Facebook users nationwide who are age 40 and older, who are interested in receiving employment-related advertisements or recruiting from employers via Facebook, and who were excluded from receiving an ad because of their age. Second, the complaint names not only four defendant employers, but also a defendant class of employers and employment agencies. Plaintiffs alleged there may be a thousand or more members of the defendant class, which could include every employer that has used age-limited Facebook ads. In addition to the federal ADEA claim (which is expected to be amended once the charge process runs its course), plaintiffs have asserted claims under state law for discriminatory advertising and disparate impact recruiting and hiring.
While the named defendants are primarily large companies, the putative defendant class may also include many smaller employers. Whether potentially implicated or not, companies are advised to review their job placement advertising. At this juncture, it is too early to assess the class’s chances or the merits, either under the ADEA or the articulated state law claims. We will monitor this matter closely.
If you have any questions or would like more information, please contact Brenton Bean at [email protected].