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Are Facebook Advertisements Discriminatory and Should Facebook Be Liable?


Employers often find it challenging to recruit strong candidates in today’s economy. For that reason, many take to social media to increase their odds of persuading qualified candidates to apply. However, there have been some issues raised recently about how Facebook ads target certain individuals for certain positions. Its advertising strategies may constitute discrimination, but the question is whether Facebook can be considered an employer making it potentially liable for discrimination claims.

Potential Issues with Job Advertisements

Many companies have turned to social media in an effort to reach potential employees, like never before. Using social media sites like Facebook to advertise job openings has become very popular. It has been long understood that both employers and employment agencies are prohibited from discriminating against employees and job applicants. These prohibitions include job postings and “help wanted” ads.

A job ad that encourages certain protected classes to apply to the exclusion of others is likely discriminatory. For example, an ad for a secretarial position that only encourages women to apply is discriminatory. One example that may not be as obvious is an ad encouraging “recent college graduates” which could potentially be discriminatory toward older individuals.

Why Are Facebook Ads Are Being Challenged?

The Facebook ads that are being challenged as discriminatory do not appear so on their face. In other words, they do not openly encourage certain individuals to apply. However, the advertising process used by Facebook allows employers to specifically target certain individuals based on their demographic. To put it another way, Facebook advertising uses certain algorithms that ensure the ads reach the intended audience. So, if an employer wants to limit its applicant pool to a certain demographic and excluded others, Facebook ads could allow them to do so. Facebook ads could target men and not women or people age 20-30 and not anyone over age 40.

Evidence of Discriminatory Impact of Facebook Job Ads

A group of attorneys has challenged Facebook on behalf of several job seekers that allege discrimination in job advertisements. After performing job searches on Facebook, a group of job seekers examined the disclosure on Facebook that explains why they received those specific ads. According to the disclosures, these job seekers received them because they were men of a specific age range located in a certain area. Women in the same area, searching the same variables, would not have received the same advertisements.

Even more obvious, men received job ads for mechanical positions, sports marketing positions and manual labor jobs; whereas, women received childcare and home health positions. More importantly, it is the employers who place the ads with Facebook who are allowed to select which gender they want to receive the targeted ads.

But, Can Facebook Be Held Liable?

The most interesting legal issue in this scenario is whether Facebook can be held liable for any alleged employment discrimination. Is Facebook an employment agency or, based on its activity and services, should it be considered as such? The reality is that many individuals who have difficulty finding suitable positions turn to Facebook and other forms of social media to search for potential jobs. The argument is that Facebook uses its access to an enormous amount of user data to match job seekers, with great precision, to advertised positions. In this way, they could arguably be acting as an employment agency.

Facebook, on the other hand, defends itself by arguing that the Communications Decency Act protects it, as an internet company, from liability for posting third-party content. This issue has not yet been resolved, but it presents a very interesting dilemma that we will monitor.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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