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A new age-discrimination theory may bring concerns for employers

A large proposed class-action lawsuit called Bradley v. T-Mobile filed in U.S. District Court in San Francisco raises a legal argument that advertising for employees on Facebook may involve illegal employment discrimination based on age.

The Communications Workers of America, a large union, filed the suit in December and amended it at the end of May to include additional defendants and to add claims that California's employment discrimination laws and unfair competition laws are being violated. Broadly, the allegation is that placing an employment ad on Facebook that filters those who can view the ad by age and leaves out older ages from the ad request (such as people in their 50s and 60s) results in unlawful disparate treatment based on age.

Facebook filters

If an older worker is filtered out, he or she cannot see the ad, even if he or she is well qualified for the job. Vox reports that the lawsuit asks for money damages for Facebook users over 40 as well as an injunction (court order) prohibiting the use of employment ads that do not display for older Facebook users.

According to Bloomberg, the union also has filed a similar complaint with the U.S. Equal Employment Opportunity Commission or EEOC. Bloomberg also quotes a Facebook executive as denying that its tailoring of ads "by audience" is not discriminatory.

Congress is also looking at this issue, according to Bloomberg. The U.S. Senate Special Committee on Aging, which has bipartisan membership, has asked Facebook for data about age-targeted job advertising.

At our law firm, we will carefully monitor this litigation and similar lawsuits to provide up-to-date legal advice to our employer clients. In the meantime, any employer considering online advertising for job openings should seek legal advice about how to comply with anti-discrimination laws.

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