Is It Illegal for Job Ads to Target Younger Workers?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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AgeismDoes it count as age discrimination if older workers never even see job ads targeted at younger workers?

As NPR reported, when Linda Bradley’s call center job ended, she had a hard time finding a new job via online job sites.

Her 26-year-old daughter found a job right away, and Bradley learned that recruiters often target ads at younger candidates.

Bradley is one of the plaintiffs in a lawsuit filed in December against Amazon, Cox, Facebook, T-mobile, and other companies.

The suit was filed by the Communications Workers of America, a labor union representing more than 700,000 workers in a range of industries including “telecommunications, cable, information technology, airline, manufacturing, print and broadcast news media, education, public service, and healthcare,” according to the complaint.

Target Population

When companies advertise or “promote” posts on Facebook, for example, they can specify the age range, geographic location, and interests of the people who will see the material.

According to the complaint, T-Mobile sent one recruiting ad via Facebook that limited the recipients to those age 18 to 38.

Facebook sent another job ad that limited the target population to those age 21 to 55.

Facebook’s vice president of ads defended its recruiting practices, saying that tailoring individual ads wasn’t illegal, as long as an overall recruitment campaign was designed to reach all demographic groups.

Bradley said that she wasn’t being reached by the same ads her daughter saw at the same time.

Facebook allows users to click to see why they’re seeing certain ads.

As NPR noted,

Last month, in response to an investigation by the Washington state attorney general into the matter, Facebook signed a legally binding agreement, pledging to stop allowing advertisers to exclude people based on race, nationality or sexual orientation. But … that did not prohibit exclusions based on gender and age.

On-Campus Recruiting

Recruiters sometimes effectively exclude older candidates by, for example, recruiting on college campuses and capping the number of years of experience accepted for a position.

For example,  as NPR reported, Dale Kleber, a 40+ lawyer, applied to a company seeking candidates with three to seven years of experience. When he was rejected, he sued, on the basis that most lawyers over 40 have more than several years of experience.

He said that “overqualified” was a code word for age discrimination.

The 7th U.S. Circuit Court of Appeal ruled in Kleber’s favor, but the company he applied to has appealed. The appeal will be heard in September.

As I explained in this previous blog, the federal Age Discrimination in Employment Act of 1967 (ADEA) protects workers 40 and older.

As the complaint notes, when it enacted ADEA,

Congress found that older workers faced discrimination in hiring and other employment opportunities, and that the arbitrary setting of age limits led to higher unemployment rates for older workers.

The  Equal Employment Opportunity Commission (EEOC) received more than 18,000 complaints of  age discrimination in 2017, and most were filed by women, who are more likely  than men to be victims of age discrimination in hiring.

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