Employers would have the upper hand in litigation if applicants accuse them of using Facebook job ad filters to discriminate based on age and gender, lawyers and professors say.
The U.S. Equal Employment Opportunity Commission recently said such ads are biased and found that employers like
The letters don’t indicate legal action yet; the agency has investigated the merits of the charges, and determined their credibility to be valid. The letters could lead to settlement talks before any lawsuits are filed.
But if the agency sues those employers, it would need substantive evidence to prove that age or sex bias occurred, employment lawyers and professors told Bloomberg Law. Employers also might have an advantage, taking in to account a higher standard to prove age bias claims in particular, coupled with the chance to prove a wider recruiting strategy.
Facebook has faced opposition to its advertising technologies from the Department of Housing and Urban Development and the Department of Justice over its housing ads, and the EEOC’s new stance on the issue brings it into line with those federal agencies.
The EEOC declined to comment on its stance, beyond to confirm it’s the first time the agency is taking sides on the issue.
If a lawsuit is filed, the EEOC would have the burden of proving intent of age discrimination in violation of the Age Discrimination in Employment Act, while employers can use a business necessity of bona fide occupational qualification defense, Ifeoma Ajunwa, assistant professor of labor and employment law at Cornell University’s Industrial and Labor Relations School, said.
“It’s kind of a high standard,” she said.
EEOC Burden to Prove
Discrimination is challenging to prove from the get-go, but age discrimination has its own particular challenges, Robin Shea, a Constangy, Brooks, Smith & Prophete partner, said.
The ADEA requires the plaintiff to prove a claim of disparate treatment—that an employer intended to discriminate against the employee—instead of the lower standard associated with a disparate impact claim—that employees experienced unintentional discriminatory effects of neutral recruitment tactics.
Applicants wishing to bring bias claims against an employer face different challenges. Disparate impact claims can be brought by an employee, but there isn’t a clear answer of whether applicants can bring the claims. The EEOC has argued that applicants should be able to bring disparate impact claims, but two appeals courts have sided against it, and the matter might be taken up by the U.S. Supreme Court.
Furthermore, ADEA disparate treatment claims requires a showing of “but-for causation,” meaning that age discrimination was the main reason behind an applicant not being hired. This is a challenging task, Ajunwa said.
“That’s kind of harder to prove and the reason is because essentially the employer can show other reasons why that person was hired,” she said.
The EEOC would also have to prove that there aren’t legitimate business reasons for filtering out certain demographics, Shirley Lin, acting assistant professor at New York University School of Law, said. Lin was also previously a senior associate at plaintiff’s firm Outten & Golden.
Another hurdle is proving that the recruitment was the only effort the employer made to attract candidates—sometimes targeted recruitment actually improves the pipeline of candidates coming in to apply, particularly diverse candidates, Rae Vann, Center for Workplace Compliance senior vice president and general counsel, said.
“The agency will also need to hear the relative importance of online platform ads within the companies’ overall recruitment efforts for each of the postings, given that employers may supplement recruitment efforts to ensure a broader pool,” Lin said.
Employer Defense Tactics
An employer can take advantage of any of those tactics, proving that there are legitimate business reasons for filtering certain candidates out, also known as seeking candidates with bona-fide occupational qualifications, as well as defending their overall recruitment strategy, Ajunwa said.
“Assuming the plaintiff is actually able to prove intent or motive, and even able to prove that age was a but-for causation, the employer can still use a business necessity defense, or a BFOQ defense,” she said.
Government contractors also have particular defenses, because they’re required to prioritize the hiring of certain people, Shea said. The Labor Department’s Office of Federal Contract Compliance Programs “has long encouraged federal contractors to target their hiring efforts to members of protected groups (for example, by advertising in a minority newspaper),” she said. “It’s possible that some of the ‘targeting’ going on in these cases was the employer’s attempt to comply with its affirmative action obligations.”
The OFCCP requires certain contractors to set hiring goals based on sex, race, disability, and veteran status, but not age.
EEOC Remains Vague on ‘Subtle’ Bias
Facebook’s filtering tool uses a very specific technology to disseminate employment ads. While this is the first time the EEOC has commented on this particular issue, the agency has remained mum on other legal gray areas in the past, Ronald Cooper, EEOC general counsel under President George W. Bush, said.
Cooper mentioned “subtle” examples of targeting certain demographics, like posting jobs ads in publications where applicants only of a certain age would see them, such as in an AARP newsletter or Seventeen magazine.
“If the ad says something like, ‘seeks dynamic young candidates for this position,’ that would be something they ought to stomp all over,” Cooper said. But the agency hasn’t said whether examples like those listed above qualify as discrimination.
“I don’t know where they would come down on that,” he said.