Posted: February 5th, 2019
By: Amber Razzano
Social media sites have the ability to provide tools for employers to assist with their search for candidates with specific qualifications, however, the improper use of this information is a blurry line. The EEOC’s position remains that personal information “may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability, or genetic information.”
In recent months, the EEOC issued a Charge of Discrimination brought by the American Civil Liberties Union (ACLU) against Facebook. The Charge alleges the company violated Title VII of the Civil Rights Act (“Title VII”) with its employment advertising, recruitment, and hiring, as well as state and local anti-discriminatory statutes. The City of Greensboro has also been charged for distributing ads for a number of different positions via Facebook’s ad platform, including the position of Officer at the Greensboro Police Department. The charging parties accuse Facebook of “enabling, encouraging, and assisting a number of employers and employment agencies, including Greensboro, to unlawfully target their advertisements based on sex and age, and for delivering the ads in a discriminatory manner” in exchange for payment. Facebook and other social media platforms have become dominated by advertisements, especially in relation to the labor market. This alleged discriminatory practice could profoundly affect those individuals, regardless of which gender they identify as, in search of a job.
The charging parties argue Facebook should be considered an employment agency, therefore liable for discriminatory targeting because it is “an active player in the labor market in which employer’s and employment agencies search for workers and advertise employment opportunities . . .” Facebook requires advertisers to indicate which gender they want their ads to reach. The job seekers argue two of the three choices “male only” and “female only” are illegal for employment ads. Facebook is posed to argue that it is not an employment agencyFacebook could allege protections from the Communications Decency Act, 47 U.S.C. § 230. A provision of this act holds “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In effect, arguing that it is just a publisher of third party content, and not liable for the content generated by such third parties. However, this does not apply if the platform is involved in “creation or development” of such content. Both arguments will pave the way for future job advertisements and social media content. The thought that Facebook could be considered an employment agency raises caution flags for other social media outlets. Advertisements are plastered all over social media sites. This new view could change the way targeting ads are utilized. Title VII was meant to protect from discrimination “because of…race, color, religion, sex, or national origin.” Targeting a specific gender in relation to employment applications can constitute sex discrimination. Advertisements should not be targeted towards a specific group. Although there has been no conclusion to this issue, it is one to caution for future social media advertisers and the sites themselves.
Amber Razzano is a second-year law student at Wake Forest University School of Law. She holds a Master of International Business and a Bachelor of Arts in Business Administration – Marketing from the University of Florida. Her practice area interests include corporate, labor and employment, intellectual property, and real estate.