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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