EEOC confirms employers can’t exclude people through targeted ads

In 2017, the New York Times and the independent newsroom ProPublica revealed that some companies were using Facebook’s ad targeting capacity to exclude older workers from seeing job ads they had placed. Then, the reporters discovered that others had been doing the same thing to exclude women from seeing the ads.

This seemed like two classic examples of discrimination in recruitment and hiring, both of which are prohibited by the Age Discrimination in Employment Act and Title VI of the Civil Rights Act of 1964, who of our nation’s federal anti-discrimination laws. The question was, would the Equal Employment Opportunity Commission see it that way?

Recently, the EEOC issued a group of rulings in which it found “reasonable cause” to determine that seven employers violated anti-discrimination laws by using ad targeting to keep women and older workers from seeing their job ads.

These rulings were in direct response to complaints filed by plaintiffs’ attorneys – including the Communications Workers of America and the American Civil Liberties Union – after the New York Times’ and ProPublica’s reporting. They are coming to light as part of a separate age discrimination case.

The following companies were cited by the EEOC:

• Capital One – age discrimination
• Edwards Jones – age discrimination
• Enterprise Holdings – age discrimination
• DriveTime Automotive Group – age discrimination
• Nebraska Furniture Mart – age and gender discrimination
• Renewal by Andersen LLC – age and gender discrimination
• Sandhills Publishing Company – age and gender discrimination

The citations mean that the companies must either work out a settlement with the EEOC or defend themselves in court.

According to the reporters, there have been dozens of complaints about exclusionary Facebook ad targeting filed with the EEOC. Most of them are pending. Most of the ads were released before 2018.

Since then, Facebook has agreed to make changes to its ad targeting platform so that companies cannot use it to discriminate in ads for employment, housing or credit, all of which are protected by anti-discrimination laws. The changes are scheduled to be in place by the end of the year.

These rulings are significant because they hold the advertiser, rather than Facebook alone, responsible for using ad targeting to discriminate.