Where does the law draw the line?
That may seem unfair to older workers, but is it illegal? When does aiming and targeting one group become the illegal exclusion of another?
This is where the answers get murky for older workers.
The Age Discrimination in Employment Act of 1967, which prohibits employment bias against people 40 or older, makes it illegal to use age as the only factor when hiring. Unlike strictly protected classes like race and gender, however, age does get more leeway as a consideration, and employers can take other “reasonable factors” into account.
But there are limits here, too. When contacted by reporters at ProPublica and the Times, some of the companies acknowledged that a line may have been crossed. Amazon said it had “corrected” the ads that targeted workers between the ages of 18 and 50. HubSpot said it was a “mistake.”
LinkedIn said that it was changing its tools to prevent age ranges in job ads. (A LinkedIn spokesperson clarifies that advertisers on LinkedIn can still use age ranges for employment ads — after the advertiser self-certifies via a check box that if the ad is a recruitment ad, the user will not discriminate based on age.)
Google, however, said that it would not stop advertisers from displaying ads based on the user’s age.
Facebook: Age-based ad targeting is “an accepted industry practice”
Facebook also defended its practice. In a corporate blog post titled “This Time, ProPublica, We Disagree,” Facebook vice president of ads Rob Goldman defended his company by saying that its age-targeted marketing was the industry norm.
“Simply showing certain job ads to different age groups on services like Facebook or Google may not in itself be discriminatory — just as it can be OK to run employment ads in magazines and on TV shows targeted at younger or older people,” Goldman wrote. “Used responsibly, age-based targeting for employment purposes is an accepted industry practice and for good reason: it helps employers recruit and people of all ages find work.”
Does the ‘magazine’ argument work?
Under the “magazine advertisement” argument, age-based targeting is not discriminatory because anyone can flip through a given magazine and find a recruitment ad if they look hard enough.
But in response to Facebook’s defense, the ProPublica/Times article pointed out that Facebook’s technology of showing ads is quite different than a magazine’s.
“Anyone can buy Teen Vogue and see an ad. Online, however, people outside the targeted age groups can be excluded in ways they will never learn about,” the report said. You can’t have a fair shot of applying to a job if you never get to see the ad.
Facebook’s history with ageism
Facebook has gotten into trouble with age discrimination before. Two lawsuits in September contended that the social media giant was not an inclusive space for older workers. And on the same day that the ProPublica and Times report came out, the Communications Workers of America labor union also accused Facebook of age discrimination, filing a lawsuit on behalf of Facebook users 40 or older who were denied the opportunity to see jobs through the company’s age-based targeting.
Facebook CEO Mark Zuckerberg also once had this to say famously about older workers: “Young people are just smarter,” he said in a speech to Y Combinator. “I want to stress the importance of being young and technical…. Why are most chess masters under 30?… I don’t know… Young people just have simpler lives. We may not own a car. We may not have family.”
UPDATE (12/21): This article has been updated to reflect a clarification from LinkedIn regarding the current options available in its advertising tool.