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INSIGHT: Online Ads Targeting Job Applicants Under Scrutiny from EEOC, Plaintiff’s Bar

Bloomberg BNA Daily Labor Report

Nathaniel M. Glasser and Adam S. Forman, Members of the Firm, and Matthew Savage Aibel, Associate, in the Employment, Labor & Workforce Management practice, co-authored an article in the Bloomberg BNA Daily Labor Report, titled “INSIGHT: Online Ads Targeting Job Applicants Under Scrutiny from EEOC, Plaintiff’s Bar.” (Read the full version – subscription required.)

Following is an excerpt:

Online advertising and hiring is a standard way many companies attract candidates, and the ramifications of private lawsuits alleging discrimination and the EEOC’s position on the topic should be taken seriously by employers, write Epstein Becker Green attorneys. They offer tips to mitigate against risk when posting jobs online.

In advertising for open positions, employers have long avoided using language calling for only people of a certain demographic to apply—e.g., “must be 20-30 years old to apply”—without having a bona fide occupational qualification for doing so. The Equal Employment Opportunity Commission (EEOC) and the courts have concluded that, in nearly all circumstances, such explicit language constitutes discrimination on its face.

Whether a job advertisement evidences discrimination becomes less clear, however, when a facially neutral advertisement is published in a manner meant to be seen by a specific population. For example, would advertising in a university’s “young alumni magazine” be discriminatory to older job seekers?

Online advertising has supercharged these situations as companies can use tools available on Facebook and other internet platforms to target who sees their job ads, and likely who, in turn, applies for those jobs.

In response to a previous set of lawsuits, in March, Facebook settled with various parties and agreed to, among other things, “no longer allow ads for housing, employment or credit-related products to be targeted at particular users by age, gender or zip code.”

Related reading:

November 13, 2019, Bloomberg BNA Daily Labor Report, “To Stories,” by Patricio Chile. (Read the full version – subscription required.)