Friday, February 2, 2018
There’s been considerable fuss recently about age-based targeting of social media job advertisement, in a variety of media, including the New York Times and NBC. The short version of the story is that the ads were shown to a younger demographic, thus giving such workers a considerable leg up in the job hunt, maybe even a monopoly on many openings.
It’s not at all clear that the practice is illegal under current federal law. While the ADEA does reach advertisements, the language of § 623(e) bars only expressing an age preference, and these ads do not do that. Indeed, they don’t need to because older workers never see the ads in the first place. Maybe Facebook can be viewed as an “employment agency,” as one suit argues, but it’s still somewhat of a textualist stretch to reach this particular kind of conduct. And maybe state laws, especially those with aiding and abetting prohibitions, fill the gap although many seem to track the ADEA’s phrasing.
The reality is that current laws did not envision a world in which employers could market openings to niche groups of potential employees, and none of the current legal paradigms is a very good fit for the problem. And that’s true even if we all agree that such targeting is contrary to the goals of the ADEA because people outside of the specified age range will often be effectively shut out from participation in the recruitment and hiring process.
Maybe public outcry will address the concerns? The Times reports that, while Google does not prevent advertisers form displaying ads based on the user’s age, LinkdIn has changed its system to prevent such targeting. And one could imagine an amendment to the ADEA that proscribed that conduct. Senators Collins (R) and Casey (D), seem concerned.
But would either a shift by social media or a statutory amendment be effective? The ads in question were tailored to an age demographic, and prohibiting that precise conduct might be easy. But would it solve the problem or would employers simply shift to other methods of targeting desired workers? Social media outlets allow advertisers to aim at other groups, say “recent college graduates” or maybe “active Facebook users.” Such targeting might be a pretty good proxy for age while avoiding a formal age classification.
How would we even think about that? Disparate treatment because a particular employer shifted from a facially discriminatory policy to a proxy? But what about an employer who never used age targeting but starts looking for recent grads? Or disparate impact because the target group is facially neutral even though heavily youth-centric? And if we go the latter route, might the ads be justified by a reasonable factor other than age, given that likely applicants for entry level jobs are probably younger and targeted ads may be more cost-effective? Of course, the latter possibility depends on how Facebook, Google, or LinkedIn charge advertisers – a per click rate might obviate cost concerns.
All in all, quite a challenge for the antidiscrimination project.
Hat tip to Charles Mueller Seton Hall ’18 for his research assistance.