January 2, 2019
By: Emily C. Kaminski

If you scroll through Facebook, you may see certain targeted ads. Some employers have allegedly used Facebook’s algorithm to target ads to exclude women and older workers. Targeting employment ads may violate federal law.

Federal law prohibits employers and employment agencies from discriminating against anyone over age 40, in employment advertising, recruiting, hiring, and other employment practices. It is also illegal to send or publish employment ads that discriminate or indicate a preference based on age.

An example of an ad that appeared on Facebook states that the employer “wants to reach people ages 18 to 38 who live or were recently in the United States.”

This is not the first time Facebook has been in legal trouble for their advertising practices. In 2016, Facebook allegedly allowed advertisers to exclude people of color from receiving housing, employment, and credit ads.

Facebook has more than two billion monthly active users. For some employers, Facebook can be the most important tool to reach certain types of workers. For instance, employers can reach hourly workers who may not have resumes or may not use other platforms.

Companies and advertisers have the option on Facebook to target their ads based on three categories: 1) core audiences, 2) custom audiences, and 3) lookalike audiences. Core audience targeting options allow advertisers to reach people based on their demographics, interests, location, and behaviors. Custom audiences are made up of people a company is already connected to on Facebook. Lookalike audiences help companies find people on Facebook that are similar to the people the company is already connected to.

To be clear, targeting ads is not illegal. Ads for products and commercial services are often targeted. You are very likely to see advertisements for trucks or power tools during a football game.

Ad targeting becomes a legal problem only when the advertisements are by potential employers or employment agencies. Employment agencies and employers are prohibited from publishing ads that indicate a preference for age, gender, race, etc. If an employment agency or employer uses the “core audiences” function on Facebook to target their ads to “only women” or “only people under 35” that likely would be a violation. However, using “core audiences” to target ads based on location would likely not be a violation.