Hiring Through Facebook Ads – Part 1

Facebook and other social media platforms offer a business owner the unique opportunity to target a specific audience in advertising, in other words, to microtarget. In building an advertisement, the business owner may specify attributes that allow the business to seek out the perfect individual, and Facebook works its magic to place the ad in front of the desired class of people.

For example, a yoga studio may want to target women, aged thirty to fifty (or something along those lines) who are into exercising and can use Facebook to microtarget prospective patrons who fall within those parameters.

These advertisements can be incredibly effective, and frankly, as a consumer, I have a love/hate relationship with them. On the one hand, the advertisements are beneficial in delivering right to my own newsfeed several options of a product or service that I happen to be looking for, most recently, a new insulated water bottle. On the other hand, the fact that they (Facebook and its advertisers) knew I wanted a new insulated water bottle feels creepy and invasive.

As a business owner, microtargeting ads are solid gold.

Facebook recently launched a service that helps business owners solicit new employees.

On the face of this, there is nothing illegal about placing an advertisement for employment services up on Facebook, assuming the advertisement does not have any illegal material within it. Meaning, the advertisement does not state that it is seeking only certain individuals, and it does not state that it excludes other individuals belonging to a protected class.

Ok, so let’s assume the ad itself passes the smell test, on its face. Something like this:

EMPLOYMENT OPPORTUNITY: ADMINISTRATIVE ASSISTANT

• Must be comfortable speaking on the phone, and engaging with clients
• Need to be familiar with Microsoft Office
• Must be organized and able to work in a fast-paced environment
• 3 years’ experience working in an office environment required

Ok, it’s a bit bare-bones, but you get the gist. There is nothing remotely illegal about the aforementioned advertisement. On its face, it does not exclude any class or group of people.

But, what about the targeting? Can a business use Facebook’s targeting?

On one hand, there probably isn’t anything wrong with posting a paper ad on a bulletin board solely in a place where women aged 25 to 35 tend to congregate, for example, that yoga studio. After all, that yoga studio isn’t closed to men, or to persons over 35; rather, the majority of its clientele just may happen to fall into a certain demographic.  So, would this practice be comparable to the use of microtargeting in job postings on social media?

Facebook is getting some heat for this microtargeting, as are a multitude of businesses that seem to be trying to target only younger workers, often searching for recent college grads.

What is the law?

Individuals aged 40 and older are protected from discrimination in employment by the Age Discrimination in Employment Act (ADEA). The ADEA prohibits employers from intentionally discriminating against older workers, as well as from engaging in practices that have the effect, even if not the intent, of discriminating against older workers. The latter is referred to as “disparate impact.” There is no question that the ADEA protects current employees from unfair treatment when over the age of 40. But, the question is, does it protect job applicants?

The courts in the various federal circuits around the country are in disagreement on this matter. The Eleventh Circuit has stated that outside job applicants are not protected, in other words, they could not bring a discrimination claim under the ADEA.

Kleber v. CareFusion

The Seventh Circuit (which includes Wisconsin) recently heard a case that dealt with this very issue. CareFusion, a medical technology company, placed an ad for an in-house attorney position, seeking candidates with “5 to 7 years’ experience,” and hired a 29-year-old for the job. Dale Kleber, aged 58, also applied for that job. Kleber sued CareFusion alleging that he was more qualified than the 29-year-old because he had 25 years of relevant experience. In defending its decision to elect the 29-year-old over Kleber, CareFusion stated that the 5-7 year experience cap in the posting was based on a concern that someone with more experience would not be satisfied with the lower level of complexities in the job duties, and might leave the position due to boredom.

This issue was before the Seventh Circuit in September 2018 (after a request for an en banc hearing after a decision in favor of Kleber in April 2018). As of this writing, we anxiously await the court’s decision.

Does the ADEA prohibit discrimination as to job applicants?

At the moment, the law is up in the air as to whether or not the ADEA covers discrimination as to job applicants. But, in the state of Wisconsin, state law is clear in its prohibition on businesses discriminating against job applicants based on age and other protected classes. The laws of some other states could be as restrictive as or even more restrictive than Wisconsin. As our lifestyles become increasingly mobile, the laws of other states become more and relevant, as an employer may not know from what states an applicant is being targeted.  An applicant in another state may be subject to that state’s protections, even if the employer is not in that state.

We still haven’t reached the initial question – Can an employer microtarget employees through facebook ads, legally? We really do not know, but we’d be happy to provide our opinion on the matter.

As always, contact Kramer, Elkins & Watt, LLC for a more detailed discussion of the matters within this blog or with any questions regarding employment law, including targeting certain employees.

UPDATE! Check out Hiring through Facebook Ads – Part 2 for more information on this topic.