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EEOC rules that some targeted advertising is discriminatory

In a recent set of rulings, the Equal Employment Opportunity Commission (EEOC) said there was “reasonable cause” to find that at least seven employers violated federal anti-discrimination laws. These employers allegedly used Facebook’s ad targeting system to exclude women and older workers from even seeing job ads from their companies.

The laws in question are Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). The ADEA, for example, prohibits employers from refusing to recruit or hire people because they are 40 or over. It also prohibits employment agencies from refusing to refer people for employment because they are 40 or older. Other anti-discrimination laws, such as those covering disability, also prohibit discrimination during the recruitment and hiring process.

Two years ago, the New York Times and ProPublica collaborated in an exposé on how Facebook’s targeted advertising was being used to get around anti-discrimination laws in hiring, housing and credit, all of which are covered by federal anti-discrimination statutes.

Partly as a result of the exposé, Facebook agreed to make broad changes in how employers, creditors and landlords can use advertising targeting. By the end of this year, they should no longer be able to exclude people who are protected by federal anti-discrimination laws.

That said, Facebook previously agreed to stop allowing housing ads to exclude people in a discriminatory fashion. A year later, tests of the system showed it was still quite easy to buy ads that excluded people by race, national origin, religion, gender, age and other protected categories.

According to ProPublica, there were four employers cited by the EEOC for age discrimination involving ad targeting:

  • Capital One
  • Edwards Jones
  • Enterprise Holdings
  • DriveTime Automotive Group

Three others were cited for both age and sex discrimination after targeting ads:

  • Nebraska Furniture Mart
  • Renewal by Anderson LLC
  • Sandhills Publishing Company

These EEOC rulings are not final. The companies can still attempt to settle the charges with the EEOC or defend themselves in court.

The rulings are significant, however, as they represent the first time that advertisers themselves, as opposed to Facebook, have been held to account for their advertising behavior.