ACLU Sues Facebook for Facilitating Gender-Biased Job Recruitment

The ACLU and others on Tuesday filed charges of unlawful gender-based discrimination with the U.S. Equal Employment Opportunity Commission against Facebook and 10 employers accused of targeting job ads at males only.

The ACLU, Outten & Golden, a Washington, D.C. law firm, and the Communications Workers of America brought the action on behalf of three female workers, the hundreds of thousands of female workers represented by the CWA, and a class of millions of female workers allegedly denied job opportunities due to their gender.

The complaint alleges that Facebook delivers job ads selectively based on age and sex categories expressly chosen by employers, and that the social network profits from ads that exclude older workers and women from receiving them.

“Sex-segregated job advertising has historically been used to shut women out of well-paying jobs and economic opportunities,” said Galen Sherwin, senior staff attorney at the ACLU Women’s Rights Project.

“We can’t let gender-based ad targeting online give new life to a form of discrimination that should have been eradicated long ago,” she added.

‘Shame on These Employers’

By law, online platforms are not liable for the content others post on their networks. The complaint before the EEOC, however, argues that Facebook can be held liable in this case for the following reasons:

• It created and operates a system that allows and encourages employers to select the gender and age of the people who get their job ads, and that provides employers with user gender and age data for targeting purposes;
• It delivers gender- and age-based ads based on employers’ preferences; and
• It acts as a recruiter connecting employers with prospective employees.

The employer and employment agency advertisers named in the EEOC charges:

• Abas USA, a global software developer
• Defenders, a leading installer of home security systems
• Nebraska Furniture Mart, a major retailer of home furniture
• City of Greensboro, North Carolina, police department
• Need Work Today, an employment agency that procures workers for farm, construction, trucking and aviation employers
• Renewal by Andersen LLC, one of the largest window replacement and installation companies in America
• Rice Tire, a tire retailer and provider of auto repair services with locations throughout Maryland and Virginia
• JK Moving Services, the largest independent moving company in America
• Enhanced Roofing & Modeling, a roofing and remodeling company based in the Washington, D.C. metro area
• Xenith, an athletics equipment manufacturer and retailer

“Despite the progress we have made, stereotypes and biases clearly still influence corporate hiring strategies,” said CWA Secretary-Treasurer Sara Steffens.

“Shame on these employers for targeting ads based on gender, and shame on Facebook for facilitating this practice,” she added.

Leadership Problem

Right now, advertisers can craft ads on Facebook that discriminate against women and older workers, maintained Outten & Golden attorney Peter Romer-Friedman.

“They can do that in five or ten minutes and Facebook will approve it,” he told the E-Commerce Times.

Facebook already blocks advertisers from discriminating in employment ads based on race, Romer-Friedman noted. “The primary thing we’re asking Facebook to do is to treat gender as it does race.”

Facebook has known about gender discrimination in ads on its system for more than 18 months and hasn’t done anything about it, he maintained. “This is not a technology problem — it’s a leadership problem.”

Facebook Decries Discrimination

Facebook appears ready to defend itself against the charges of discrimination.

“There is no place for discrimination on Facebook,” said spokesperson Joe Osborne.

“It’s strictly prohibited in our policies, and over the past year, we’ve strengthened our systems to further protect against misuse,” he continued. “We are reviewing the complaint and look forward to defending our practices.”

Facebook has a system in place to review its targeting tools to make sure they’re safe and civil, Osborne noted. That system recently removed more than 5,000 options that allowed advertisers to exclude audiences based on ethnicity or religion.

The platform also gathers feedback to improve its policies from privacy, data ethics, civil rights experts and charitable and advocacy organizations.

In addition, advertisers are reminded, through prompts, about Facebook’s antidiscrimination policies before they create campaigns using the social network’s exclusion tools.

What’s more, the company plans to require advertisers to consent that they will comply with Facebook’s antidiscrimination policies, as well as the law.

High Stakes

For Internet platforms that use targeted advertising, the stakes could be very high.

“Facebook and other platforms that rely on targeting advertising to make money may need to change their business practices so that they do not allow certain types of advertising, like ads for jobs or housing, to be directed at only men or only women,” said Pauline T. Kim, a professor of law at Washington University School of Law in St. Louis.

“Microtargeting is a problem across the Internet because it works by discrimination,” added Outten & Golden’s Romer-Friedman. “The problem with that is the laws that govern employment, housing, credit and other limited areas make clear that you can’t do microtargeting to reach out to people because of their sex, race or age.”

Although microtargeting discrimination affects other Internet platforms, Facebook often becomes the poster child for problems on the Net, Romer-Friedman acknowledged, “but it seems to me it’s slower to address these scandals than other platforms.”

Money Damages on Table

Actions against the platforms likely will expand to other classes of people the law protects from discrimination.

“There is already a similar suit that has been filed by older workers alleging employment discrimination,” Washington University Law’s Kim told the E-Commerce Times.

That lawsuit, filed in December by the CWA on behalf all Facebook users 40 or older who may have been denied the chance to learn about job openings, is based on an in-depth investigation by the union of Facebook employment ads.

The probe discovered that hundreds of employers and employment agencies were illegally targeting their employment ads to exclude older workers who fall outside specified age ranges — such as ages 18 to 40 or ages 22 to 45 — and preventing them from seeing the ads and pursuing the job opportunities in them.

The primary purpose of the EEOC action is to get Facebook to change its advertising policies, Romer-Friedman noted, but monetary damages are on the table, too.

“Compensation will help people who have been impacted,” he said, “and is a way to deter future conduct by bad actors.”