Facebook Accused of Allowing Bias Against Women in Job Ads


Facebook has been criticized in recent years over revelations that its technology allowed landlords to discriminate on the basis of race, and employers to discriminate on the basis of age. Now a group of job seekers is accusing Facebook of helping employers to exclude female candidates from recruiting campaigns.

The job seekers, in collaboration with the Communications Workers of America and the American Civil Liberties Union, filed charges with the federal Equal Employment Opportunity Commission on Tuesday against Facebook and nine employers.

The employers appear to have used Facebook’s targeting technology to exclude women from the users who received their advertisements, which highlighted openings for jobs like truck driver and window installer. The charges were filed on behalf of any women who searched for a job on Facebook during roughly the past year.

Debra Katz, a Washington-based employment lawyer not involved in the case, said the advertising campaigns appeared to violate federal law, which forbids employers and employment agencies like recruiting firms to discriminate on the basis of gender, among other categories. Some state laws also forbid aiding and abetting discrimination.

“That seems pretty egregious,” said Ms. Katz, who specializes in bringing discrimination cases. She said Facebook’s technology made it akin to an employment agency. “The fact that they’re using this tool to facilitate discrimination absolves neither the hiring business nor Facebook.”

“There is no place for discrimination on Facebook; it’s strictly prohibited in our policies,” said Joe Osborne, a Facebook spokesman. “We are reviewing the complaint and look forward to defending our practices.”

The lawyers involved in the case said they discovered the targeting by supervising a group of workers who performed job searches through their Facebook accounts and clicked on a variety of employment ads. For each ad, the job seekers opened a standard Facebook disclosure explaining why they received it. The disclosure for the problematic ads said the users received them because they were men, often between a certain age and in a certain location.

For example, the Facebook disclosure for an ad by Nebraska Furniture Mart of Texas seeking staff members to “assemble and prepare merchandise for delivery” said the company wanted to reach men 18 to 50 who lived in or were recently near Fort Worth. The lawyers and their team collected the ads between October 2017 and August 2018.

The New York Times contacted three of the employers to inquire about the allegations. Two of them, Renewal by Andersen, which sells and installs windows and doors, and Defenders, which sells and installs home security systems, declined to comment. Nebraska Furniture Mart did not respond.

In principle, the companies could have simultaneously aimed similar ads at women, but they do not appear to have done so, according to the lawyers involved. Some conceded that they had directed the ads only at men, and some promised to stop doing so, according to Peter Romer-Friedman, counsel at Outten & Golden, one of the lawyers in the case.

Some employers, responding to similar accusations in the past, have argued that their Facebook ads are only one component of a broader recruiting campaign that is more inclusive, in which they use different media to reach different audiences — including ads on platforms like LinkedIn or Indeed and on other websites or on television.

LinkedIn and Google also generally allow advertisers to exclude men or women from receiving ads. LinkedIn said in a statement that it would take down job ads that exclude a gender; Google said it would remove ads that discriminated against a protected class but declined to say if it would take down ads like those in the Facebook case. Facebook said that it was still reviewing the ads but that it generally did not take down job ads that exclude a gender.

In practice, Facebook, with its more than two billion monthly active users, can be the most important tool for reaching certain types of workers, such as hourly workers, who often do not use other platforms like LinkedIn and sometimes do not even have résumés.

Bobbi Spees, a 35-year-old mother of three from Smethport, Pa., who is one of those bringing the charges, said that she was a part-time job coach for special-education students and that she had sought a better-paying position.

Ms. Spees spent several years in her 20s working at a container factory where, she said, the pay was roughly two to three times what she currently makes and her health coverage was impeccable. She said she would like to find a similar job and had used Facebook actively for her search but had difficulty finding leads.

By contrast, Ms. Spees said, her husband saw numerous ads for high-paying manual jobs when he was searching online for a job two to three years ago.

“It really came to my attention that I was seeing hardly any jobs offered other than home health and stuff like that,” Ms. Spees said in an interview.

In a sense, Ms. Spees was lucky to receive such intelligence from her husband. More often, said Galen Sherwin of the A.C.L.U., her lawyer, “people don’t know they’re not seeing an ad.”

Lawyers for the workers in the case argue that Facebook is an employment agency and therefore liable for the discriminatory targeting because it is an active participant in the recruiting campaign rather than a passive publisher of content like a traditional newspaper with a classified section.

Pauline Kim, a professor of employment law at Washington University in St. Louis, said the question was more ambiguous, hinging on the extent to which Facebook uses its algorithms to match an ad with a particular subgroup.

“The more it gets into the use of these algorithms to really start narrowing down the matching, the more it moves toward looking like an employment agency,” Ms. Kim said. But she said that how far a platform like Facebook must move down that path before it is considered an employment agency remains “an open question.”

To show culpability, the lawyers in the case point out that Facebook requires advertisers to indicate which gender they want their ads to reach, and that two of the three choices for this category — male only and female only — are illegal for employment ads. (Only the third choice, “all,” would past muster under federal anti-discrimination law.)

Even if Facebook argues successfully that it is not an employment agency, future plaintiffs could bring complaints under state laws, such as California’s Fair Employment and Housing Act, that bar aiding and abetting employment discrimination — a more liberal standard.

Traditionally, Facebook’s strongest defense has been the Communications Decency Act, a federal law that includes a provision shielding internet companies from liability for content generated by third parties.

But the immunity does not apply if the platform is involved in the “creation or development” of the unlawful content, which could be the case for ads that are targeted in a discriminatory way, experts have said.

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