Answer:
Possibly, if your recruiting strategy is limiting your job postings to particular age groups (or perhaps other protected classes), to the exclusion of others. Facebook allows advertisers to choose their audience. In turn, Facebook uses the extensive data it collects about its members to ensure the ads reach the intended audience. This “microtargeting” permits employers who are advertising to reach their preferred applicant pool, including people they believe are the most viable hires.
A recent class action filed against Amazon, Cox and T-Mobile US by the Communication Workers of America and three workers alleges that ads targeted users by age on Facebook in violation of the Age Discrimination in Employment Act (“ADEA”). ADEA prohibits discrimination against applicants or employees age 40 and over. This case, and apparently the many others likely to follow, focus on employers alleged conscious decision to exclude older workers by electing to have their ads for jobs only visible to younger members of Facebook. In posting ads on Facebook, employers are now able to reach Facebook users in certain age groups, such as ages “22 to 40” or “20 to 45,” apparently to the exclusion of other (insert “older”) potential applicants.
The ability to recruit on Facebook in this targeted fashion may help direct ads to the desired applicant pool and allow advertising dollars to be spent wisely. However, companies that do so should be careful in executing their recruiting strategy. Employers who target certain applicants or employees should do so based on bona fide occupational qualifications (BFOQs). For example, an employer may not be able to hire minors for certain jobs. However, from an age perspective, this BFOQ defense is pretty limited. Given that this seems to be the latest iteration of employment class actions, employers should carefully assess their recruiting strategies and make adjustments as needed to avoid joining the ranks of those companies already sued.
About the Author: Laura Liss (lliss@pfs-law.com) is Chair of Patzik Frank and Samotny’s Employment Law Practice Group. She provides both legal and practical business advice on all phases of employment-related decisions. She regularly serves as a sounding board for business owners, executives and human resources professionals and assists them in successfully and efficiently navigating the various employment laws that impact their businesses.
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