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Can employers legally target online job ads to younger workers?

After a layoff, one 45-year-old woman pored over online job ads every day searching for something equivalent to what she had been doing before. Strangely, there seemed to be no job openings despite a strong economy. Finally, someone from her old union clued her in on the fact that job recruiters are known to target online ads exclusively to younger people. Someone her age might not be given a chance to see the available opportunities.

She's now a plaintiff in a federal lawsuit against T-Mobile, Amazon, Facebook and other similarly situated employers and employment agencies by the Communications Workers of America. The suit alleges that, when companies make some job ads invisible to people 40 and over, they violate the Age Discrimination in Employment Act (ADEA).

Assuming the employer is covered by the ADEA (most are), the law does prohibit discrimination against job applicants aged 40 and over, and it does apply to job notices and advertisements, according to the EEOC. That said, the EEOC and courts haven't had time to specifically consider whether it's illegal to use exclusionary ad targeting to ensure job ads are only visible to younger applicants.

Facebook declined an NPR request for comment on the suit, but in December it defended exclusionary ad targeting as part of an overall recruitment strategy. In a blog post, the company's vice president of ads acknowledged that U.S. law prohibits age discrimination but argued that "simply showing certain job ads to different age groups on services like Facebook or Google may not in itself be discriminatory," concluding that "what matters is that marketing is broadly based and inclusive."

Last month, however, Facebook signed a legally binding pledge to stop allowing advertisers to use ad targeting to exclude people based on sexual orientation, race or nationality. The agreement was in response to an investigation by the Washington state attorney general.

"The agreement shows that they could fix the age discrimination issue very quickly, but they are resisting and that is very perplexing," commented a spokesperson for the Communications Workers of America.

It seems easy enough to solve. Simply remove job advertisers' ability to pick an age or limit visibility based on age-related characteristics. Facebook has already agreed to do this for race, nationality and sexual orientation; it and other platforms should simply make the assumption that federal anti-discrimination laws apply to their ads and adjust the available settings to put a stop to the discrimination.

"Their business relies on this microtargeting; the problem is microtargeting can be discrimination," says the Communications Workers of America spokesperson. "Civil rights don't stop when you turn on your computer."

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