Title VII states, “It shall be an unlawful employment practice for an employer . . . to print or publish . . . any notice or advertisement relating to employment . . . indicating any preference . . . based on race, color, religion, sex, or national origin.” This makes all employment ads targeting a protected classification illegal. This section was meant to effectively eliminate help wanted ads that included provisions stating minorities need not apply.
As recruitment practices have evolved, employers have also come to abuse new tools at their disposal. Employers recruiting online can utilize Facebook services that filter future employees by race, gender, and age. In reaction to this form of modern covert discrimination, there have been several complaints filed with the Equal Employment Opportunity Commission (EEOC) and in federal court against employers alleging they have used these unlawful actions in their recruitment.
For example, in Communication Workers of America v. T-Mobile, the Communication Workers of America (CWA) filed a class action lawsuit in the Northern District of California on behalf of a class of workers over the age of 40 against several employers including Amazon, Cox, and T-Mobile. The complaint alleges the employers refused to send their employment ads on Facebook to anyone over the age of 55, effectively discriminating on the basis of age. This would also violate the Age Discrimination in Employment Act.
As in the previously discussed suit, Facebook had been involved in legal actions to the extent it was being used as a tool for the employers’ to discriminate. However, on September 18th, the American Civil Liberties Union (ACLU) and the CWA filed a complaint with the EEOC against Facebook under Title VII. The ACLU provides in their complaint a theory for including Facebook as a defendant in the suit.
They allege Facebook acts as an employment agency by collecting data used by employers and providing services to recruit future employees. In the use of these services, Facebook prompts employers to filter—or discriminate—based on several factors including gender. Additionally, Facebook provides a service to employers where they can select a “Lookalike Audience” categorization. If employers opt into this feature, Facebook selects people to send advertisements to and targets groups based on their gender.
Because Facebook requires all users to identify a gender, it can use this information to permit employers to send employment advertisements only to designated genders. Similarly, the notification sent to targeted users provides the employers’ preferred hiring gender. In effect, a recruited man gets a message from Facebook saying the employer wants to hire men. The complaint alleges this has had a disparate impact on women and non-male members of Facebook because they have been barred from seeing these ads.
As stated by the complaint, “Facebook has created and profited from a powerful tool for discrimination against female and other non-male job applicants.” Facebook does have an information page that informs employers it is illegal to discriminate on the basis of gender, age, and race. However, as Facebook has not changed their policy or the system through which they allow employers to utilize the data they collect on users, this seems almost more an acknowledgement of guilt rather than actual safeguard.
While these cases are operating at the federal level, there has also been effort on a state level to prevent Facebook’s discriminatory practices. Facebook recently entered into an agreement with the State of Washington to stop allowing third parties to restrict the race of the individual that receives their advertisements. In November of 2016, the State of Washington launched an investigation into Facebook’s practices of permitting employers or other third party users to send advertisements to designated affinity groups. This included groups like “African American,” “Asian American,” and “Hispanic.” There was no affinity group identifying Caucasians or European Americans. The investigated system follows a similar process to the gender discriminating practice challenged by the ACLU, whereby the third party user can decide which groups can see their ad and which ones cannot.
In concluding the investigation, the state determined Facebook’s system was in violation of the Revised Code of Washington’s clause on unfair competition and the clause on freedom from discrimination. Facebook has until the end of October to change its procedures to comply with the Assurance of Discontinuance issued by the Washington Attorney General. In order to comply Facebook must no longer permit advertisers to filter and select designated affinity groups to target as restricted audiences.
As it is no longer plausible that Facebook is unaware of its role in these discriminatory practices, hopefully it will be encouraged by these lawsuits to change all of their advertisement and recruiting methods in order to comply with state and federal laws.*
*Taylor Brook is an associate editor on the Michigan Technology Law Review.