How did you find your current job? Was it through an advertisement in the newspaper or another print periodical? And how about if you’re an employer looking to recruit and hire new employees? Chances are, the answer to all of the above is: the internet. So, if the employment advertisements that employers/employees use and view are located primarily on the internet, and a company chooses to advertise open positions to viewers/users of a specific age range (say, under 40 years old), does this violate the Age Discrimination in Employment Act (ADEA)’s prohibition against discriminatory publication or advertising by an employer or employment agency, among other provisions?
The Northern District of California is poised to confront this very question later this year. In Bradley v. T-Mobile US Inc., No. 5:17-cv-07232 (N.D. Cal.), Plaintiffs—Communications Workers of America union members and other job seekers over age 40—brought collective and class action claims against Amazon, T-Mobile, Cox Communications, and hundreds of other large employers and employment agencies, arguing that by using Facebook advertisements targeted to younger users, these employers have violated the ADEA, as well as similar state and local laws. Plaintiffs allege that Facebook acted as the agent for the prospective employer companies in creating, developing, and sending their job advertisements.
In their complaint, Plaintiffs highlighted the alarming acceptance and even championing, of such discrimination. In statements made to the New York Times in 2017, Facebook affirmed its belief in this model, describing it as “age-based targeting for employment purposes,” which, according to Facebook, is “an accepted industry practice.” Indeed, only a year ago, LinkedIn—one of the most popular social media platforms for professional networking—revised a policy that allowed the purchase of employment ads targeted by age, to add a gatekeeper function in which the employers must first affirm that the ads are not discriminatory. In a climate where this type of targeting is purported “an accepted industry practice,” it seems dubious that employers can function as their own gatekeepers, as LinkedIn’s policy change would seem to suggest. But I digress.
Plaintiffs allege that “a significant portion of large employers and employment agencies in America” use Facebook’s ad platform to select an age range of users that excludes older workers, and state that they have identified more than 100 employers and employment agencies who do so, including Capital One, IKEA, Sleep Number Corp., and Enterprise Rent-a-Car, to name a few. Plaintiffs allege that these companies sent employment ads to people in various restricted age ranges, such as “ages 18-54,” “ages 22 to 54,” ages 18-54,” and “ages 25 to 54.”
These discriminatory practices are not only unlawful, but their aggressively retrograde nature also belies the realities of modern life—people are working, by choice or necessity, well after the traditional age of retirement. In 2014, 40% of people ages 55 and older were working or actively looking for work, and 65- to 74-year-old and 75-and-older age groups are projected to have faster rates of labor force growth annually than any other age group through 2024.
Currently pending before the court is several motions by Defendants, including motions to dismiss for failure to state a claim, lack of personal jurisdiction, and lack of standing. Plaintiffs, and amici, AARP, and AARP Foundation, urge that the ADEA is a remedial statute that should be construed broadly and that Plaintiffs have stated valid claims of disparate treatment and discrimination in advertising under the ADEA, as well as under state law. More broadly, Plaintiffs argue that employers should not be able to undermine their fundamental civil rights with new microtechnologies that allow employers to exclude them from employer recruiting and advertising of available opportunities. A hearing on the motion to dismiss is currently scheduled for April 2019.
This sprawling case could lead to invaluable gains for older workers and assist with dismantling one of the more silent and pernicious ways in which they are unlawfully prevented from pursuing opportunities for which they are qualified.
If you believe that you have been discriminated against based on your age, you should consult with a lawyer to determine whether to bring an age discrimination lawsuit. Sanford Heisler Sharp has experienced employment discrimination lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.
 Julia Angwin, Noam Scheiber and Ariana Tobin, Facebook Job Ads Raise Concerns About Age Discrimination¸ N.Y. Times (Dec. 20, 2017), https://www.nytimes.com/2017/12/20/business/facebook-job-ads.html. Jennifer Valentino-DeVries, AARP and Key Senators Urge Companies to End Age Bias in Recruiting on Facebook, ProPublica (Jan. 8, 2018), https://www.propublica.org/article/aarp-and-key-senators-urge-companies-to-end-age-bias-in-recruiting-on-facebook. Mitra Toossi and Elka Torpey, Bureau of Labor Statistics, Older workers: Labor force trends and career options, https://www.bls.gov/careeroutlook/2017/article/older-workers.htm.