Thursday, December 21, 2017

Can Employers Restrict Job Ads on Facebook to Persons Under Age 40?

The Age Discrimination in Employment Act (ADEA) prohibits adverse treatment of employees and applicants who are 40 years of age and older.
A newly filed lawsuit alleges that T-Mobile US Inc., Amazon.com Inc., and Cox Communications Inc. imposed age limits on who could see recruitment ads, limiting ads to people 38 years old and younger.
Facebook has received other complaints about “micro-targeting” its ads.
This process allows ad purchasers to target based on age, interests, race—and as reported by Westlaw (a legal database), Facebook also allows ads tailored to people who dislike other people based on race or religion (e.g., advertisers who are targeting viewers who dislike Muslims).

That brings me to an inference as to why the defendants here chose the age limit of 38 years and younger. Perhaps they think that they can avoid liability because their ads also took out people who were 39 years of age.
They might get away with that defense. But as we read in our employment law class (Smith v. City of Jackson), the ADEA also allows for disparate impact claims. Choosing age 38 categorically excludes every person ages 40 and above, even if a court finds no specific intent to discriminate against people over age 40.

Legalities aside, this is more evidence that Silicon Valley isn’t the progressive element in society that it projects. If there are buyers with discriminatory intent for their ads, Facebook is happy to do business with them. 

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