In the past, we’ve posted about the complicated intersection of civil rights law and digital marketing. It’s an interesting topic, largely because it’s an area where there is very little settled law. Since the marketing technologies available on platforms like Google Ads and Facebook are relatively new, courts do not have decades of precedent to rely on. This can leave digital marketers confused about what strategies and tactics cross the line between acceptable optimization and illegal civil rights violation.
Suits filed by The Communications Workers of America have the potential to clarify some of those issues. The first suit, filed in December of 2017 and amended in August 2018 alleges that Facebook both facilitates and engages in age targeting that discriminates against older job-seekers. The second suit, filed in September 2018, alleges that the social media platform facilitates employment discrimination on the basis of gender by allowing employers to show ads exclusively to men. Both cases may have an enormous impact on digital marketers, especially those who work in industries governed by federal civil rights law.
Because to the age discrimination case has generated more ore publicity as well as a response from Facebook, this post will focus on that suit. The gender discrimination case alleges that many of the same underlying targeting strategies are unlawful, so it will certainly be worth keeping an eye on how that case develops, and if the courts treat it any differently.
The Allegations
The allegations are laid out in most detail by the CWA in their the court filing. The union alleges that Facebook knowingly facilitates age discrimination for employment ads in the following ways:
- By allowing advertisers to outright select the age range of users that the ads will be shown to (as in the ads pictured below, which are taken from the CWA court filing.)
- By allowing advertisers to target affinity groups as proxies for age, as they allege occurs when advertisers can select that their ads be shown to users in the groups “Young and Hip” and “Millenials”.
- By allowing advertisers to target lookalike audiences (audiences based on existing user groups that Facebook’s algorithm determines to be demographically similar to the original group). CWA alleges that lookalike audience is legally indistinguishable from “word-of-mouth” hiring, a practice the complaint states “has long been considered a discriminatory and unlawful employment practice.”
Facebook’s Response
Rob Goldman, Facebook’s VP for Advertising, released a statement responding to the original allegations of age-discrimination. In the statement, Facebook denies wrongdoing, both for its own advertising practices and for facilitating age-targeting in the context of employment and recruitment.
Facebook’s argument is that, while exclusively advertising to a targeted age-group might constitute discrimination, it is not discriminatory to use such targeting options as part of a broad recruitment and advertising strategy. Goldman compares the use of Facebook’s ad platform to target a specific age-range for a job posting to placing an ad in a magazine that caters to a specific age-range, arguing that neither is illegal as long as it is a part of a broader recruitment strategy that exposes the open position(s) to people of diverse ages.
Implications For Digital Marketers
While neither the age nor gender discrimination suits have been decided, and it may be years until they work their way through the legal system, digital marketers in all industries would do well to consider their possible ramifications. Especially for marketers working in fields that are governed by civil rights law (like housing, employment, and credit), these cases could have enormous implications.
Beyond the initial complaint against companies that exclude protected classes as a matter of fact, the plaintiffs allege that it is illegal to exclude these groups by proxy. If the courts agree, this would massively impact the targeting options available to marketers working in the affected industries. Since their debuts, lookalike audiences and groups have been a boon for advertisers looking to increase ROI by targeting very narrow, qualified audiences. It may not be the users’ intent to exclude protected classes from their audience, but when the seed lists or groups they select are non-diverse, they may have a discriminatory effect. If the plaintiffs can successfully convince the courts of their position, digital marketers will have to ensure that their targeting is not only non-discriminatory on its face, but also in practice.
Furthermore, this has implications beyond Facebook. Google offers analogous targeting options in the form of Affinity Audiences and Similar Audiences, and it’s easy to imagine that a broad ruling in these cases would set a precedent for that platform as well. It also would raise a number of thorny questions around automated bidding strategies. For example, if a digital marketer working on behalf of a staffing company tells Google’s algorithm to maximize conversions, and Google sees that our employment ads do especially well among men aged 20-40, it’s conceivable that the effect would be to discriminate against users over 40 and women. Are such ads legal? The outcome of the CWA suits may point towards an answer to that question.
In the meantime, these suits should prompt digital marketers to examine their own practices for potential discrimination. Even if Facebook is ultimately vindicated by the courts, and these sort of targeting strategies are found to be legal in the context of a broader advertising strategy, digital marketers should consult their clients to ensure that there is a broad, non-discriminatory advertising strategy that they are a part of. These sort of issues present a good opportunity for marketers to initiate consultative discussions with their clients, and those conversations may bear fruit in the form of a deeper understanding of clients’ larger marketing strategies.
What’s more, even as the law surrounding these issues is not settled, they nonetheless illustrate some of the ethical issues marketers should be aware of. The CWA age-discrimination complaint makes a compelling case for showing recruitment ads to folks of all ages. Consider the following passage:
For tens of millions of forgotten workers whose plants have shuttered, hospitals have closed, and retail stores have been driven out of business by e-commerce, receiving ads for job openings via Facebook could be a godsend—a ray of hope at the end of a long, dark tunnel in which American workers have been discarded by national companies that place profit over people.
Digital marketing is a relatively nascent field, while the foundation of modern civil rights law stretches back more than five decades. It will take time for new precedents to be set and, perhaps, for new laws to be written. Until such a time, digital marketers will find themselves operating in a sometimes uncomfortable gray-area, attempting to maximize ROI while minimizing liability for their clients. The CWA cases serve as a reminder that our advertising practices can affect individuals’ lives in meaningful ways. As such, even in cases where the law isn’t settled, marketers would do well to consider the spirit of those foundational civil rights and advertising laws when examining their own practices.
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