By: Layla Nguyen, Member-Candidate, J.D. Candidate, May 2020, St. Thomas University School of Law.

Pursuant to Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, it is unlawful to limit job postings to one sex or on the basis of age. But how are employers still able to segregate on this basis? Through Facebook, the process of creating a job posting advertisement is simple; the employer selects an option to target a specific sex or age group which then connects the preferred users who fit the description to view the job posting advertisement.

Recently, the ACLU, the employment law firm Outten & Golden LLP, and the Communications Workers of America filed a complaint against Facebook and a number of employers for alleged discrimination through use of Facebook advertisements with the Equal Employment Opportunity Commission. The complaint alleges violation of federal, state, and local laws that prohibit sex discrimination in employment advertising, recruitment and hiring, including Title VII of the Civil Rights Act of 1964 and the Federal Age Discrimination in Employment Act. Specifically, the allegations state that the advertisements on Facebook were used to discriminate against potential job seekers by targeting exclusively to younger male users, and excluding all women and non-binary users from receiving the job posting advertisements. Facebook’s platform makes it easier to discriminate in the digital age than in the 1960s when newspaper postings were the prominent way to find a job; it delivers the advertisement directly to the targeted group and leaves the marginalized groups no opportunity to view the job posting or other economic opportunities.

Although Facebook is not liable for the content that is published by its users, the ACLU has claims its discriminatory marketing infrastructure enables advertisers to utilize it based on their preferences. This is not the first time that the Facebook platform has been accused of facilitating discriminatory practices. In August 2018, the Department of Housing and Urban Development filed a complaint alleging violation of the Fair Housing Act by allowing landlords and home sellers to use Facebook targeting advertisements to discriminate against potential buyers on the basis of race, sex, religion, disability, and other characteristics.  Facebook responded by eliminating 5,000 targeting options that could be used for potential discriminatory practice. This problem goes beyond Facebook. It calls for changes to platforms gathering personal data on social media to be used in targeting advertisements to express a preference for sex, age, race, religion, and other marginalized groups. We are far from the era of newspaper job posting advertisements, yet our technology and social media sites facilitate discriminatory practices even more easily by creating options to exclude others by a mere click of boxes.  Isn’t it just as easy to deter exclusion of marginalized groups in job posting advertisements by taking the option away for employers to select on the basis of sex or age?