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Posted October 4th, 2019 in Top Stories, Legal Insights

EEOC Finds Age-Restricted Advertisements Violate ADEA

Approximately two years ago, a number of employers received charges of discrimination alleging that they discriminated against applicants by restricting the recipients of employment advertisements on Facebook. The EEOC just found reasonable cause on the first seven such charges; and more probable cause determinations seem likely in the near future. Employers who have not yet been targeted should take steps now to prepare.

What are the charges about?

The charges of discrimination allege that employers improperly targeted younger workers to receive recruitment ads on Facebook. Employers recruiting through Facebook can select to whom their ads are directed (e.g., users aged 18 to 45). Facebook’s ad transparency measures allow a Facebook user to see why a company has selected that user for the ad (e.g., “One reason you’re seeing this ad is that [Company] wants to reach people ages 18 to 45.”). This age targeting and Facebook’s transparency language are the focus of the claims (the claims are described in more detail here).

Critically, key decisionmakers for employers (including in-house counsel) may not even be aware that their Facebook recruiting targeted potential applicants based on age. Many employers outsource online recruiting to third-party agencies, and those agencies may have used Facebook’s age-based targeting unbeknownst to the employer.

The EEOC finds reasonable cause

As noted, the EEOC recently found reasonable cause on several of these charges. However, it did not include any meaningful support for this conclusion. Instead, the EEOC simply asserted it had evidence that employers advertised on Facebook using language meant to limit the age of individuals who viewed the ad. The agency did not address the employers’ likely defenses, failed to identify the specific ADEA provisions it believes may have been violated, and ignored the fact that the age-limiting language in the ads came from Facebook, not the employers.

Consistent with its standard procedures, the EEOC asked the employers to try to resolve the matter informally through conciliation. If the employers refuse to do so or if conciliation fails, then the EEOC is likely to file suit in federal district court. While conciliation generally has a high success rate, the EEOC’s cursory analysis in this case is unlikely to incentivize employers to consider a settlement.

What actions should employers take now?

If you have not yet received a letter from the plaintiffs’ lawyers or a charge of discrimination, you should still review the content of your recruitment ads on Facebook and other social media platforms to determine whether your recruiting ads previously included or now include limitations based on age or other protected characteristics. Regardless of the ultimate viability of the plaintiffs’ claims, employers who find that their recruiting ads do have age, gender, race, or other demographic restrictions should discontinue that practice to avoid being caught up in this dispute.

If you have received a letter or a charge, you know that the plaintiffs’ lawyers are demanding immediate production of voluminous information relating to your online recruitment program and a commitment to resolve the claims by settlement in order to avoid costly and time-consuming litigation. Before communicating with the plaintiffs’ lawyers or responding to a charge, you should:

  • obtain legal counsel to strategize the best response, which may or may not be a refusal to produce anything;
  • thoroughly audit your online recruiting program to assess potential liability and defenses; and
  • if called for, run the necessary statistical comparisons to gauge the best course of defense.

Again, all employers using social media platforms to sponsor recruitment ads should review their practices immediately, as plaintiffs’ counsel continues to expand their list of targeted employers.

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