In advertising for open positions, employers have long avoided using language calling for only people of a certain demographic to apply—e.g., “must be 20-30 years old to apply”—without having a bona fide occupational qualification for doing so. The Equal Employment Opportunity Commission (EEOC) and the courts have concluded that, in nearly all circumstances, such explicit language constitutes discrimination on its face.
Whether a job advertisement evidences discrimination becomes less clear, however, when a facially neutral advertisement is published in a manner meant to be seen by a specific population. For example, would advertising in a university’s “young alumni magazine” be discriminatory to older job seekers?
Online advertising has supercharged these situations as companies can use tools available on Facebook and other internet platforms to target who sees their job ads, and likely who, in turn, applies for those jobs.
In response to a previous set of lawsuits, in March, Facebook settled with various parties and agreed to, among other things, “no longer allow ads for housing, employment or credit-related products to be targeted at particular users by age, gender or zip code.”
In Steps EEOC
For employers that advertised on the platform, however, the legal difficulties relating to the advertisements did not end there. In July, the EEOC issued reasonable cause findings against several companies related to the posting of job advertisements on Facebook in 2017 and 2018 that allegedly were directed towards specific populations of people—men and younger people—while simultaneously excluding others—women and older people—from seeing the ads.
These findings only recently became publicly available after the Communications Workers of America, the plaintiff in a pending class-action lawsuit against Facebook alleging that its ad-targeting tools discriminate against older workers, filed the EEOC findings in support of its lawsuit.
Now, private plaintiffs are pointing to the EEOC’s reasonable cause findings as proof that “[t]here has been a systemic problem with national employers using those tools to exclude people from recruiting.” Private plaintiffs have brought class action suits against large companies across the nation, arguing their online advertisements for jobs were discriminatory because they were directed towards specific populations of candidates at the exclusion of others.
Online and Social Networking Platforms
Considering that online advertising and hiring has become a standard way in which many companies attract candidates, the ramifications of these private lawsuits and the EEOC’s position on the topic should be taken seriously by employers. While Facebook may have promised to cease this practice, other online and social networking platforms may still allow for similar types of advertisements.
There is also the prevalence of “digital hiring programs” that purport to “passively recruit”—in other words, identify applicants who are not actively seeking to apply in the hopes of enticing them to do so through advertisements. These digital hiring platforms use artificial intelligence algorithms to accomplish this task and, depending on the means of statistically validating their results, have the potential to disparately impact groups who may not be considered by the programs.
For example, a computer algorithm might determine that the best candidates to pursue for an “entry-level” job position are those who are recent college graduates, and thereby avoid seeking older applicants who might want to go through a career change and apply for the job.
Be Cautious When Posting Jobs
Given these potential pitfalls, employers should be cautious about how they post for jobs online and how they seek candidates. While foregoing the internet as a means to connect with applicants is impractical, we recommend taking the following steps to mitigate against risk:
- Evaluate which online platforms your company currently advertises jobs on, and ensure that those ads are not being targeted based on protected factors such as age, race, or gender.
- Evaluate each publication and website used to post your company’s job advertisements to ensure that there is something about the advertising platform that is job-related. For example, buying ad space on a website for engineers makes sense when hiring for engineering positions. However, while the majority of engineers are male, it does not follow that the company should advertise for jobs on a website that sells nutritional supplements for men.
- Audit the methods in which hiring managers conduct searches. An online or social networking site may offer “recommended matches” based on its own algorithm. For each candidate in which the company is “not interested,” the algorithm then presents fewer candidates with similar backgrounds and recommends new ones with different backgrounds. In the wrong hands, these tools can have the same effect as any single discriminatory hiring manager, but potentially reach a larger number of people. A person can use these tools to filter out for “background” traits of potential applicants, which can be a proxy for protected status classifications. Thus, it is incumbent on companies to understand how employees are using these tools and correct against their abuse.
- Update record retention policies to ensure that online job postings, related advertisements, and the applications that result from them are maintained for the applicable statute of limitations period. This time period varies from state to state and may also depend on whether or not your company is a federal contractor.
- Make sure that your company, when considering the use of digital hiring programs, conducts its due diligence, scrutinizes the collection and storage of the data, conducts a proper validation study, conducts adverse impact analyses, continuously monitors outputs, and investigates the accessibility of the tool.
- Ensure a balanced recruitment approach through multiple channels. If your company chooses to conduct targeted online advertisements as a method of recruitment, have it also deploy other means of recruitment in conjunction, such as using headhunters, job placement agencies, and re-training programs.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Nathaniel M. Glasser is a member of the firm in the Employment, Labor & Workforce Management practice, in the Washington, D.C., office of Epstein Becker Green, where he co-leads the artificial intelligence strategic industry group. His practice focuses on the representation of employers in employee relations and human resources compliance, as well as litigating claims of harassment, discrimination, whistleblowing, and wage-hour violations.
Adam S. Forman, a member of Epstein Becker Green’s Employment, Labor & Workforce Management practice, focuses his practice on labor and employment issues related to technology in the workplace, such as artificial intelligence, social media, and privacy. In addition, he represents employers in labor relations and employment litigation matters and frequently conducts workforce training on a variety of labor and employment issues.
Matthew Savage Aibel is an associate in the Litigation and Employment, Labor & Workforce Management practices in the New York office of Epstein Becker Green. He assists clients with complex commercial litigation, business disputes, and breach-of-contract matters, and advises employers about issues and policies related to technology in the workplace, artificial intelligence, social media, privacy, and the online conduct of employees.