Targeted Online Employment Advertising and Employment Discrimination

Is targeting your online advertisement about an open position in your organization to men under the age of 35 legal? Definitely not. Online advertising platforms like Facebook and Google are getting slapped with age and sex discrimination lawsuits for facilitating discrimination based on age and sex. Federal law prohibits age and sex discrimination—even during the hiring process. This post will address the federal laws that prohibit sex and age discrimination, the problem with targeting job openings online, and how an employer can mitigate the risks associated with posting targeted job advertisements online.

Federal Anti-Discrimination Laws

The Age Discrimination in Employment Act (ADEA) prohibits employers with 20 or more employees from discriminating against individuals age 40 and older in the workplace.¹ Under this federal law, discrimination is forbidden in all aspects of employment including hiring, firing, training, promotions, benefits, job reassignments, and any other terms or conditions of employment.

Title VII of the Civil Rights Act of 1963 prohibits employers from discriminating against employees and job applicants on the basis of sex.² This law applies to all government employers at the federal, state, and local level, as well as private employers with at least 15 employees.

The Problem with Targeted Job Advertisements

In the past, employers could post a job advertisement in a newspaper or magazine that would be seen by virtually anyone who picked it up. Now media platforms provide a cost-effective way to target specific audiences with particular messages. In the world of online advertising, a media platform, like Facebook, Google, or LinkedIn, permits advertisers to target their advertisements for services, products, and jobs to specific audiences. While targeted advertisements to sell shoes is perfectly lawful, targeting job openings to a subset of individuals can be a tool to discriminate—specifically on the basis of sex or age.

Under Title VII and the ADEA, it is unlawful to discriminate in the hiring process based on age or sex. Lawsuits challenging this practice are claiming that entire groups of people over the age of 40 and women are being denied job opportunities they never even knew existed because media platforms are facilitating employer discrimination. They didn’t know the opportunities existed because the designated advertising audience was male or younger—even though that wasn’t mentioned specifically in the ad. Several cases have settled out of the court and others are still working their way through the courts. Best Practices for Online Job Advertisements

As an employer is there any way for your organization to advertise job openings on these big media platforms legally? Yes. Employers who choose to advertise open positions online should carefully analyze whether the media platform complies with relevant federal law. In addition, when posting a job opening, refrain from placing any age or sex restrictions on the advertisement.

Conclusion

Online job postings are a convenient and affordable way for employers to fill open positions in their organization. However, it is the responsibility of employers to make sure their online job advertising is compliant with federal law. If employers are unsure about their organization’s compliance, they should consult with legal counsel to limit legal liability.

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Featured Image by Rebecca Sidebotham.

¹ 29 U.S.C. § 621.

² 42 U.S.C. § 2000e.