Fifty years ago, the Age Discrimination in Employment Act (ADEA) wasenacted to prohibit and eradicate systemic age discrimination thataging workers faced in the workplace. Congress determined thatolder workers faced discrimination in hiring, and that thearbitrary setting of age limits led to higher unemployment ratesfor older workers, see 29 U.S.C. Section621.

In an effort to thwart such discrimination, Congress prohibitedemployers and employment agencies from discriminating based on age in employment,advertising, recruiting, hiring and other employment opportunities,and also made it unlawful to send or publish employment ads thatdiscriminate or indicate a preference or limitation based onage.

The seldom used, but often-overlooked provision of the ADEAprohibiting a preference for age in advertising has come into sharpfocus in the social media age and rightfully so, considering howmuch money is spent on ads. Advertising revenue on social media in2017 was projected to be $41 billion. In 2016, ads seen on Facebookand Twitter alone made up about three-quarters of the social mediaad market.

Advertisers, at their very core, have always tried to targetcertain consumers to buy their goods and wares. With an expectedaudience of over 100 million Americans, it is no surprise thatadvertising rates for a 30-second ad to watch our belovedEagles during this year’s Super Bowl will average over $5million.

A big audience commands a big advertising budget. The differencebetween general TV ads, like those we will see during Super BowlLII, and ads seen on your Facebook and Twitter feeds, is thatsocial media can target you individually and specifically. Whilethe Budweiser Clydesdales kicking a football may appeal to a smallpercentage of the overall viewing audience using traditional TVads, a promoted product or service on your Twitter timeline can bedesigned in a way to appeal to any specific preferences you mayhave.

Based largely off the data collected about its users, techcompanies can “micro-target” segments of the population throughwhat you post, to what you read, to who you interact with on yourdevices, etc. This begs the question about the proper use oftargeting when it does so to the exclusion of protectedclasses.

In a federal class-action lawsuit filed on the heels of the 50thanniversary of the enactment of the ADEA, members of theCommunications Workers of America allege that this micro-targetingby advertisers through the use of social media to deliver theirmessage disadvantages older workers (i.e., Facebook users 40 yearsold or older) who may have been denied the chance to learn aboutjob openings, see Bradley v. T-MobileUS, Case No. 5:17-cv-07232 (N.D. Ca. filed Dec. 20,2017).

The lawsuit alleges, inter alia, that Facebook ads havethe ability to reach people based on factors such as age, gender,location, interests and behavior. According to the complaint,“employers not only sponsor ads on Facebook users’ news feeds toseek applicants for specific employment opportunities, but theyalso use Facebook as a main source of showcasing their brands topotential applicants. Enhancing a company’s brand increases thelikelihood that a person will apply for employment opportunitieswith that company in the future.”

Continued on next page >>>

The lawsuit describes the offending conduct as follows: “When anemployer or an employment agency creates, purchases, and sends aFacebook ad to make workers aware of job opportunities andencourage them to apply for various jobs, Facebook requires theemployers or employment agencies to select the population ofFacebook users who will be eligible to receive the ad, includingthe age range of the users who will receive the ad. FollowingFacebook’s encouragement to narrowly focus ad campaigns on the‘right people,’ including by targeting younger people, uponinformation and belief, hundreds of major employers and employmentagencies routinely focus their Facebook employment ads on users whoare under 40 years old (and sometimes on users who are under higherage thresholds). This prevents workers who are above the selectedage threshold from receiving employment ads and pursuing relevantjob opportunities.” In essence, folks outside the targeted agegroup never even see the ad and thus, do not even know whatemployment opportunities they be missing out on.

In 2016, Facebook came under tremendous scrutiny for the samealleged practice which made it possible for advertisers tomicro-target or exclude black, Hispanic, and other “ethnicaffinities” from seeing ads for housing and employment. At thattime, Facebook executives issued a statement saying that they “takea strong stand against advertisers misusing our platform: Ourpolicies prohibit using our targeting options to discriminate, andthey require compliance with the law.” Nevertheless, themicro-targeting practice in advertising has persisted, according tothe new lawsuit, with age-related parameters.

With respect to the current allegations, Facebook defended itspractice by suggesting it is no different than running employmentads in magazines and on TV shows targeted at younger or olderpeople. In a statement, Facebook contended that “used responsibly,age-based targeting for employment purposes is an accepted industrypractice and for good reason: it helps employers recruit and peopleof all ages find work.”

The problem with this line of reasoning, as articulated before,is that the end users being excluded from seeing the ads are nevergiven the opportunity to see or know of the opportunities in thefirst place. Yes, anyone can pick up a magazine or watch an adduring the Super Bowl, even if the ad or commercial does not appealto him or her. But at least that consumer can process what he orshe is seeing, in real time, and make a conscious decision onwhether to partake in the goods or products being peddled.

The difference with micro-targeting of social media users isthat one can never know what one does not ever see. Moreover, ifFacebook provides active encouragement to the filters used byadvertisers which ultimately screen out older workers, as thelawsuit alleges, the company may be liable for aiding and abettingdiscrimination. As employment lawyers in Pennsylvania well know,liability exists for any person who aids or abets thediscriminatory purpose of an employer under the Pennsylvania HumanRelations Act.

It may be too soon to know the extent to which Facebook may beliable for age discrimination for its role in this practice.Ultimately, there may be immunity issues under Section 230 of theCommunications Decency Act which would preclude liability. Section230 protects internet companies from liability for third-partycontent. Nevertheless, the micro-targeting practice is questionableand highlights a need for closer scrutiny.