The internet age has opened up seemingly countless digital platforms for employers and employees to use in seeking to fill, and applying for, open positions.  Many employers use Indeed, Quikr, CareerBuilder, Glass Door, LinkedIn – the names are endless – to post jobs and look for employment candidates.  Given the prevalence of such platforms, the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice, and the U.S. Department of Housing and Urban Development have been monitoring their use in areas such as employment, housing, and credit. These agencies have made it a priority to ensure that companies cannot exclude certain groups from online advertising or solicitations, whether involving employment, housing, or credit.

Employers in particular must pay attention to certain actions that were taken by the EEOC in 2019 (and that are expected to continue through 2020), and in litigation currently pending in the federal court for the Northern District of California.

Specifically, the EEOC stepped up its involvement after Charges of Discrimination were filed against employers in varied industries alleging that the employer’s use of Facebook to recruit candidates violated the federal Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII).  The ADEA prohibits an employer from printing or publishing, or causing the same, of any notice or advertisement for employment which indicates a preference, limitation, specification, or discrimination, based on age.  Title VII includes the same prohibitions, but in regards to gender, race, color, religion, and national origin. The Charges primarily alleged that the employers advertised on Facebook for an open position and used language which limited the ages of those individuals who could apply for the position.

Some of the EEOC Charges were filed against well-known large employers, such as Capital One, Edward D. Jones & Co., Enterprise Holdings, and Renewal by Andersen.  However, Charges also were filed against smaller employers like the City of Greensboro North Carolina Police Department, Rice Tire (a Maryland and Virginia auto repair firm), Enhanced Roofing and Modeling (in the DC area), and the Nebraska Furniture Mart.

In July 2019, the EEOC issued determinations against seven of the companies, finding “reasonable cause to believe that” at certain times each one advertised on Facebook, with national exposure, and when doing so engaged in the practice of “advertising on a social media platform and limiting the audience for their advertisement[s] to male” applicants or to “younger applicants”. The EEOC’s reasonable cause findings marked the first time it found violations in a Charge regarding the advertisement for, and the targeting of, certain groups of employees to the exclusion of other groups.

The American Civil Liberties Union and other groups separately sued Facebook, claiming that Facebook allegedly sold advertising platforms which targeted specific age groups and genders, excluded candidates within certain zip codes, or limited geographic areas.  That litigation was settled in March 2019 with Facebook agreeing to pay $5 Million and make changes to its advertising platforms, including eliminating targeting by age, gender, zip code, limited geographic area, and stopping the consideration of such information of Facebook users, along with membership in Facebook “groups” when creating so-called “Lookalike” audiences for advertisers.

The EEOC’s reasonable cause determinations also were recently cited in a federal class action lawsuit currently pending in federal court in California and brought by the Communications Workers of America against Amazon.com Inc. and T-Mobile US Inc. to emphasize that the federal government considers this type of activity as violating the ADEA.  See Communications Workers of America v. T-Mobile US, Inc. and Amazon.com, Inc., No. 17-cv-07232-BLF (N.D. Cal.).

The class action lawsuit accuses both companies of violating the ADEA by directing that job ads on Facebook be pushed only to younger workers. Amazon is defending itself in litigation; however, the case is in its very early stages. It remains possible that the court could find that the advertisements used violated the ADEA if they were circulated or pushed in a way that rendered them viewable by a select group of candidates only, such as younger candidates, and even if the language in the advertisement was age-neutral on its face.

Employer Take-Aways

The EEOC’s actions and the federal court litigation are instructive for all employers using any technology platform for recruitment.  Employers taking advantage of the myriad ways to recruit, including the use of social media advertising platforms such as paid advertising provided by Facebook, may unintentionally open themselves up to litigation on the grounds that their advertisements are targeted in a way the excludes individuals in legally protected classifications.

Employers must keep in mind that job postings and announcements must be reviewed for content, and posted for publications, in ways and in media platforms that do not exclude categories of individuals, whether based on age, gender, race, or otherwise.  This need to ensure compliance applies regardless of whether traditional and/or digital platforms are used to recruit employees.  Merely because a position is posted on-line, and on a hugely popular social media platform, does not mean that the process itself ensures compliance with federal and state anti-discrimination laws.

About the Author:

David R. Deromedi is a Member in Dickinson Wright’s Detroit office where he assists clients in all areas of labor and employment law. He has primary responsibility for all wage and hour and employee health and safety matters for firm clients and is primary counsel to Japanese employers doing business in the U.S. for employment law and employment relations issues. He can be reached at 313-223-3048 or dderomedi@dickinsonwright.com and you can visit his bio here.