7 ms·

Is this different than advertising in a magazine that has a specific reader demographic? Or would that get a company in trouble too, if a the court rules that

Is this different than advertising in a magazine that has a specific reader demographic? Or would that get a company in trouble too, if a the court rules that the intent was to exclude a given group?

danso 9y ago
It's against U.S. federal law for employers to discriminate against people aged 40-or-over on the basis of age. Having job ads that only younger people could see would seemingly fall afoul of that law: https://www.eeoc.gov/laws/statutes/adea.cfm https://www.eeoc.gov/laws/statutes/adea.cfm
- aggie 9y ago
  Anyone can pick up a magazine. The question is whether you can put an ad in Young People Monthly because you know it's likely to skew your audience in the direction you want. Without knowing much about the actual law, it seems like an area ripe for gray area maneuvering. Specifically ad-targeting to 20-35 year olds seems like a much more clear violation of the rules, simply because it is explicit.
- derekp7 9y ago
  Is there any case law regarding this when it comes to physical publications? Because that case law could come into play in deciding the Facebook case. Hypothetical example: a local employer puts up a job flyer at a college campus, but does not put the flyer up at the senior center across town. I could see a court ruling this illegal, if the employer did this specifically to try to attract younger workers.
  - jsmthrowaway 9y ago
    Seniors can still go to the college campus and see it. These ads are completely not shown by the system. Not a perfect comparison.
  - greglindahl 9y ago
    Some college students are senior citizens.
- dantheman 9y ago
  I guess the question of targeting different ads at different demographics needs to be answered -- is that ok? Is it ok to recruit at a college job fair?
  - ridgeguy 9y ago
    Yes, I would think. While the college job fair demographic is statistically biased to the young, there are people over 40 who go to college. As long as the recruiting opportunity is made known to the over-40s as well as those younger, it would seem ok to recruit at a college job fair. Not ok would be to decline to interview those over 40, keep them from learning about the opportunity, or otherwise exclude them from the process, based on their age.
    - baddox 9y ago
      There are some older people who go to college, sure, but I would hope that the law concerns itself with the intent and/or the effect of the segmentation. There are probably some younger people who for whatever reason see the Facebook ads for older people too, but the intent of that segmentation is obvious, and I would hope the law would make provisions for that.
- ringaroundthetx 9y ago
  So Facebook has asked for immunity regarding discriminatory ads, it wasn't clear to me what the status of that was And the presence of a targeted ad doesn't prevent excluded people from actually going to a job posting site. If the job posting site was doing this with people's Facebook session (or other way of knowing age), I would be alarmed and appalled. If a company was doing this on their career site I was be up in arms. But Facebook running ads where some of them happen to be job related ads in the same place that other random ads appear? Ehhhhhhhhh
- smallgovt 9y ago
  I doubt it runs afoul of that law. Segmentation is a common characteristic of online advertising campaigns. A sophisticated advertiser never shows the same types of ads to young and old audiences (especially on Facebook) because the two audiences react drastically different. If your goal is to run efficient campaigns, you will always separate the two. As a result, the advertiser can simply claim that they separated the two, and then realized they simply couldn't afford the CPC of the older audience (i.e. the ROI didn't make sense). Alternatively, they could just set a very high bid for the older audience and never get any traffic to those segments. Overall, I think you'd be hard pressed to prove discriminatory intent even if it exists.
  - tptacek 9y ago
    The premise of the CWA lawsuit is that recruiting advertising is not like other advertising, and must comply with anti-discrimination employment law.
  - danso 9y ago
    Someone quoted in the article does make the case that the federal age employment law does allow for other considerations to a "reasonable" degree when targeting age -- i.e. discrimination isn't as cut-and-dry as it would be for targeting race or gender: > But some companies contend that there are permissible reasons to filter audiences by age, as with an ad for entry-level analyst positions at Goldman Sachs that was distributed to people 18 to 64. A Goldman Sachs spokesman, Andrew Williams, said showing it to people above that age range would have wasted money: roughly 25 percent of those who typically click on the firm’s untargeted ads are 65 or older, but people that age almost never apply for the analyst job... > Pauline Kim, a professor of employment law at Washington University in St. Louis, said the Age Discrimination in Employment Act, unlike the federal anti-discrimination statute that covers race and gender, allows an employer to take into account “reasonable factors” that may be highly correlated with the protected characteristic, such as cost, as long as they don’t rely on the characteristic explicitly.
- Y7ZCQtNo39 9y ago
  So they can pay to show the ads to job seekers 40+ but not hire them. Facebook makes more money, and they get to say they did some social good. Seems like they should be advocating (at least in this use case) to stop the discrimination to increase profits.
  - gumby 9y ago
    Well of course they could, just as people advertise jobs or loans to black people and then magically never hire / approve them. There are mechanisms for finding this -- just because it is possible to do, doesn't mean it's legal or fair.
- loeg 9y ago
  But curiously, not illegal to discriminate against people under 40 on the basis of age (at least, under the same Federal statute)[0]. If these job ads were targeted at the 40+ demographic only, they would be totally ok. It's even been to the Supreme Court[1]: > In the 2004 decision General Dynamics Land Systems, Inc. v. Cline, the U.S. Supreme Court settled a conflict among the lower courts over the viability of so-called “reverse age discrimination” claims under the ADEA. Reverse age discrimination involves claims by younger employees who allege they have been discriminated against because of their youth. > ... > The Court observed that “if Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under forty.” > ... > In the wake of the Cline decision, the Equal Employment Opportunity Commission (EEOC) issued a new rule in July 2007, which specifically addresses reverse age discrimination and provides that employers aren’t liable under the ADEA when they prefer older workers over younger ones. ... > While a help-wanted notice can’t contain terms and phrases that limit or deter the employment of older employees, businesses may lawfully post advertisements that express a preference for older individuals. [0]: https://www.eeoc.gov/youth/age.html https://www.eeoc.gov/youth/age.html [1]: http://www.hrhero.com/hl/articles/2009/10/23/can-employers-discriminate-against-younger-workers/ http://www.hrhero.com/hl/articles/2009/10/23/can-employers-d...
  - danso 9y ago
    I wonder if this one-way protection exists because otherwise it would be legally tenuous to post job ads seeking a minimum number of years of experience (e.g. 10+ years in professional Python development), which basically by definition discriminate against the very young.
    - alasdair_ 9y ago
      I suspect it's more to do with older people voting more.
      - Clubber 9y ago
        Younger people don't get discriminated against in a job market as much?
- 0xcde4c3db 9y ago
  Any chance someone could point to a good explanation as to the argument for how this doesn't fall afoul of the Equal Protection Clause? I found a couple references to Massachusetts Board of Retirement v. Murgia, but the circumstances there seem different enough that the reasoning wouldn't directly translate.
- markbnj 9y ago
  If they post the job opportunity on many different sites is it discrimination if one of those sites targets a specific age group? I'm a 57 year-old steadily employed software engineer/SRE so I am definitely in favor of less age discrimination :). I get that FB is a huge market, but for professionals LinkedIn and Indeed are probably just as important.
- 77pt77 9y ago
  OK. It's illegal. So what? What's going to happen to the companies that clearly engage in it? My guess is nothing and for some reason they think doing this is valuable. The end result is that they'll keep on doing it until it hurts them in any way.
tptacek 9y ago
It's different in that there's no plausible deniability; the intent, which is critically important in adjudicating whether something is lawful, is laid bare by the Facebook interface.
rdtsc 9y ago
Maybe something in between that and say have a custom version of the magazine for each reader then have job ads customized for person's gender, age, sexual orientation, race etc. At some point that becomes illegal it seems.
mastry 9y ago
The article mentions this scenario. It points out that anyone can purchase a copy of Teen Vogue (for example) but there's nothing you can do about ads that Facebook won't show you.
- derekp7 9y ago
  Well technically, anyone could conduct their online activities so that they fit into a profile that makes them look younger. Of course, now that I look at it again, the article did mention having a specific age selector in the ad, so that part I think would be definitely illegal.
analog31 9y ago
Perhaps it's different because it's actionable. For instance, there could be a class action suit on behalf of anybody over 40 who didn't receive the ad. Also, I'm not a lawyer, but as I seem to recall, the "corporate veil" doesn't apply to certain kinds of liability, and I think discrimination is an example.
matt4077 9y ago
This strikes me as whataboutism... Just because there is a continuum from obviously illegal to obviously legal does not mean it's all tainted by subjectivity and nothing can ever be illegal. Intent matters, and judges and juries, while not perfect, do a reasonable job of assessing it. One factor that usually works in the favour of justice is that lawsuits usually target the companies, and there are always at least some employees who do the calculation and decide not to perjure themselves for the financial benefit of their employer.
gerdesj 9y ago
The magazine might have a target market but anyone (within reason) can buy/read it.

Is this different than advertising in a magazine that has a specific reader demographic? Or would that get a company in trouble too, if a the court rules that the intent was to exclude a given group?

danso 9y ago

It's against U.S. federal law for employers to discriminate against people aged 40-or-over on the basis of age. Having job ads that only younger people could see would seemingly fall afoul of that law: https://www.eeoc.gov/laws/statutes/adea.cfm https://www.eeoc.gov/laws/statutes/adea.cfm

aggie 9y ago
Anyone can pick up a magazine. The question is whether you can put an ad in Young People Monthly because you know it's likely to skew your audience in the direction you want. Without knowing much about the actual law, it seems like an area ripe for gray area maneuvering. Specifically ad-targeting to 20-35 year olds seems like a much more clear violation of the rules, simply because it is explicit.
derekp7 9y ago
Is there any case law regarding this when it comes to physical publications? Because that case law could come into play in deciding the Facebook case. Hypothetical example: a local employer puts up a job flyer at a college campus, but does not put the flyer up at the senior center across town. I could see a court ruling this illegal, if the employer did this specifically to try to attract younger workers.
- jsmthrowaway 9y ago
  Seniors can still go to the college campus and see it. These ads are completely not shown by the system. Not a perfect comparison.
- greglindahl 9y ago
  Some college students are senior citizens.
dantheman 9y ago
I guess the question of targeting different ads at different demographics needs to be answered -- is that ok? Is it ok to recruit at a college job fair?
- ridgeguy 9y ago
  Yes, I would think. While the college job fair demographic is statistically biased to the young, there are people over 40 who go to college. As long as the recruiting opportunity is made known to the over-40s as well as those younger, it would seem ok to recruit at a college job fair. Not ok would be to decline to interview those over 40, keep them from learning about the opportunity, or otherwise exclude them from the process, based on their age.
  - baddox 9y ago
    There are some older people who go to college, sure, but I would hope that the law concerns itself with the intent and/or the effect of the segmentation. There are probably some younger people who for whatever reason see the Facebook ads for older people too, but the intent of that segmentation is obvious, and I would hope the law would make provisions for that.
ringaroundthetx 9y ago
So Facebook has asked for immunity regarding discriminatory ads, it wasn't clear to me what the status of that was And the presence of a targeted ad doesn't prevent excluded people from actually going to a job posting site. If the job posting site was doing this with people's Facebook session (or other way of knowing age), I would be alarmed and appalled. If a company was doing this on their career site I was be up in arms. But Facebook running ads where some of them happen to be job related ads in the same place that other random ads appear? Ehhhhhhhhh
smallgovt 9y ago
I doubt it runs afoul of that law. Segmentation is a common characteristic of online advertising campaigns. A sophisticated advertiser never shows the same types of ads to young and old audiences (especially on Facebook) because the two audiences react drastically different. If your goal is to run efficient campaigns, you will always separate the two. As a result, the advertiser can simply claim that they separated the two, and then realized they simply couldn't afford the CPC of the older audience (i.e. the ROI didn't make sense). Alternatively, they could just set a very high bid for the older audience and never get any traffic to those segments. Overall, I think you'd be hard pressed to prove discriminatory intent even if it exists.
- tptacek 9y ago
  The premise of the CWA lawsuit is that recruiting advertising is not like other advertising, and must comply with anti-discrimination employment law.
- danso 9y ago
  Someone quoted in the article does make the case that the federal age employment law does allow for other considerations to a "reasonable" degree when targeting age -- i.e. discrimination isn't as cut-and-dry as it would be for targeting race or gender: > But some companies contend that there are permissible reasons to filter audiences by age, as with an ad for entry-level analyst positions at Goldman Sachs that was distributed to people 18 to 64. A Goldman Sachs spokesman, Andrew Williams, said showing it to people above that age range would have wasted money: roughly 25 percent of those who typically click on the firm’s untargeted ads are 65 or older, but people that age almost never apply for the analyst job... > Pauline Kim, a professor of employment law at Washington University in St. Louis, said the Age Discrimination in Employment Act, unlike the federal anti-discrimination statute that covers race and gender, allows an employer to take into account “reasonable factors” that may be highly correlated with the protected characteristic, such as cost, as long as they don’t rely on the characteristic explicitly.
Y7ZCQtNo39 9y ago
So they can pay to show the ads to job seekers 40+ but not hire them. Facebook makes more money, and they get to say they did some social good. Seems like they should be advocating (at least in this use case) to stop the discrimination to increase profits.
- gumby 9y ago
  Well of course they could, just as people advertise jobs or loans to black people and then magically never hire / approve them. There are mechanisms for finding this -- just because it is possible to do, doesn't mean it's legal or fair.
loeg 9y ago
But curiously, not illegal to discriminate against people under 40 on the basis of age (at least, under the same Federal statute)[0]. If these job ads were targeted at the 40+ demographic only, they would be totally ok. It's even been to the Supreme Court[1]: > In the 2004 decision General Dynamics Land Systems, Inc. v. Cline, the U.S. Supreme Court settled a conflict among the lower courts over the viability of so-called “reverse age discrimination” claims under the ADEA. Reverse age discrimination involves claims by younger employees who allege they have been discriminated against because of their youth. > ... > The Court observed that “if Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under forty.” > ... > In the wake of the Cline decision, the Equal Employment Opportunity Commission (EEOC) issued a new rule in July 2007, which specifically addresses reverse age discrimination and provides that employers aren’t liable under the ADEA when they prefer older workers over younger ones. ... > While a help-wanted notice can’t contain terms and phrases that limit or deter the employment of older employees, businesses may lawfully post advertisements that express a preference for older individuals. [0]: https://www.eeoc.gov/youth/age.html https://www.eeoc.gov/youth/age.html [1]: http://www.hrhero.com/hl/articles/2009/10/23/can-employers-discriminate-against-younger-workers/ http://www.hrhero.com/hl/articles/2009/10/23/can-employers-d...
- danso 9y ago
  I wonder if this one-way protection exists because otherwise it would be legally tenuous to post job ads seeking a minimum number of years of experience (e.g. 10+ years in professional Python development), which basically by definition discriminate against the very young.
  - alasdair_ 9y ago
    I suspect it's more to do with older people voting more.
    - Clubber 9y ago
      Younger people don't get discriminated against in a job market as much?
0xcde4c3db 9y ago
Any chance someone could point to a good explanation as to the argument for how this doesn't fall afoul of the Equal Protection Clause? I found a couple references to Massachusetts Board of Retirement v. Murgia, but the circumstances there seem different enough that the reasoning wouldn't directly translate.
markbnj 9y ago
If they post the job opportunity on many different sites is it discrimination if one of those sites targets a specific age group? I'm a 57 year-old steadily employed software engineer/SRE so I am definitely in favor of less age discrimination :). I get that FB is a huge market, but for professionals LinkedIn and Indeed are probably just as important.
77pt77 9y ago
OK. It's illegal. So what? What's going to happen to the companies that clearly engage in it? My guess is nothing and for some reason they think doing this is valuable. The end result is that they'll keep on doing it until it hurts them in any way.

tptacek 9y ago

It's different in that there's no plausible deniability; the intent, which is critically important in adjudicating whether something is lawful, is laid bare by the Facebook interface.

rdtsc 9y ago

Maybe something in between that and say have a custom version of the magazine for each reader then have job ads customized for person's gender, age, sexual orientation, race etc. At some point that becomes illegal it seems.

mastry 9y ago

The article mentions this scenario. It points out that anyone can purchase a copy of Teen Vogue (for example) but there's nothing you can do about ads that Facebook won't show you.

derekp7 9y ago
Well technically, anyone could conduct their online activities so that they fit into a profile that makes them look younger. Of course, now that I look at it again, the article did mention having a specific age selector in the ad, so that part I think would be definitely illegal.

analog31 9y ago

Perhaps it's different because it's actionable. For instance, there could be a class action suit on behalf of anybody over 40 who didn't receive the ad. Also, I'm not a lawyer, but as I seem to recall, the "corporate veil" doesn't apply to certain kinds of liability, and I think discrimination is an example.

matt4077 9y ago

This strikes me as whataboutism... Just because there is a continuum from obviously illegal to obviously legal does not mean it's all tainted by subjectivity and nothing can ever be illegal. Intent matters, and judges and juries, while not perfect, do a reasonable job of assessing it. One factor that usually works in the favour of justice is that lawsuits usually target the companies, and there are always at least some employees who do the calculation and decide not to perjure themselves for the financial benefit of their employer.

gerdesj 9y ago

The magazine might have a target market but anyone (within reason) can buy/read it.