Amazon, T-Mobile Targeted Job-Ads Ruling Could Affect Bias Cases

A California federal judge’s recent decision to throw out an age-bias lawsuit targeting Amazon.com Inc. and T-Mobile US Inc. advertisements on Facebook, while giving plaintiffs an outline for how to satisfy her concerns, could shape future claims of discrimination in the digital age.

Amazon and T-Mobile convinced Judge Beth Labson Freeman in the U.S. District Court for the Northern District of California to toss a proposed class action claiming the tech companies discriminate against older workers by targeting their employment ads on Facebook to young people.

But the judge laid out specific criteria for the plaintiffs to file a new complaint and allowed for more discovery. That means the fight will continue and the case could have broader legal significance, said Peter Romer-Friedman, attorney with Gupta Wessler, who represents the proposed class.

“This is one of the first cases that was filed against defendants other than Facebook. The decision shows that these are complex cases, but that we will fight tooth and nail to get justice for those affected and hold people accountable,” Romer-Friedman said.

Targeted Job Ads

The age-discrimination case, which began in 2017, targets companies that use Facebook’s platform to promote job opportunities, alleging that they opted to advertise only to younger job-seekers. The Communications Workers of America and a former call-center worker, Linda Bradley, alleged in the class-action complaint that hundreds of employers nationwide tailor their recruitment ads on the social network to people in specific age groups—excluding millions of workers over 40—in violation of the federal Age Discrimination in Employment Act.

Facebook’s advertising platform has faced similar challenges for allegedly discriminating through advertisements for housing, employment, and public accommodations. Those practices have been investigated by the U.S. Department of Housing and Urban Development, the Justice Department, and the Equal Employment Opportunity Commission.

Facebook reached a settlement in March 2019 addressing the litigation that came before Freeman and other cases against its advertising platform. It agreed to not allow targeted ads to particular users by age, gender, or ZIP code. That amounted to a partial resolution of long-running litigation. The company had previously defended posting some targeted job ads, and compared the ads to those placed in magazines or TV shows favored by certain demographics.

Attorney Jason Schwartz, representing Amazon and T-Mobile, argued during a Jan. 30 hearing on the motion to dismiss that the older workers didn’t prove they were harmed by the targeted advertisements. “It doesn’t fit—it’s a square peg, round role—it doesn’t fit within the box of what’s recognized to give you standing to pursue an advertising claim,” he argued to the judge.

He said the argument of whether unintentional hiring bias played a role shouldn’t apply to workers who didn’t actually apply for a position with either company. He argued it’s not sufficient for a worker to say he or she didn’t know about the job; but, rather, they must show they were specifically discouraged from applying.

“They don’t allege they applied, they don’t allege that it would be futile to apply,” he added.

Freeman ultimately agreed and said the current complaint against Amazon and T-Mobile didn’t raise enough allegations to prove standing or personal jurisdiction. But the workers will now be able to address certain gaps in their lawsuit. The judge also let the plaintiffs collect information from the companies that could help their lawyers identify whether alleged age-restricted ads were sent to California residents through Facebook.

Road Map for Attorneys

Freeman’s decision could prove instructive for the plaintiffs, as she said a new complaint should identify, even by way of example, a single job for which the allegations are true. Further, she said that for plaintiffs to establish personal injury, they must show they were qualified and interested in the particular jobs. The attorneys will have to show that the advertisements indicated who would be qualified, either through language in the Facebook ad or that was posted on a website referenced in the ad, she said.

The judge’s requests effectively provide a road map detailing what she wants to see in order for the plaintiffs to satisfy her concerns, said Romer-Friedman, who previously worked at Outten & Golden. He said it’s also a positive sign that Freeman granted the plaintiffs’ request to see all the age-restricted advertisements in California.

“We will be able to see what kinds of ads they were denied and when,” he said.

Outten & Golden, along with Romer-Friedman at Gupta Wessler, represent the proposed class. Gibson, Dunn & Crutcher represents the companies. Schwartz declined to comment.

The case is Bradley v. T-Mobile, N.D. Cal., 5:17-cv-07232.