Older Workers Open Up New Fronts in Campaign to Stop Age Bias By Hundreds of Major Employers Who Have Hidden Job Ads from Older Workers on Facebook

May 29, 2018

Workers and CWA amend class action complaint to add federal age bias claims for older workers nationwide; allege Facebook’s algorithm discriminates against older workers; and announce that they have filed age bias charges with the EEOC against Facebook and 37 other companies

WASHINGTON, D.C.–Today, older workers, the Communications Workers of America (CWA), and Outten & Golden LLP announced major new steps in their campaign to stop hundreds of major companies including Amazon.com and Capital One from excluding tens of millions of older workers from receiving job ads that the companies distribute via Facebook’s paid ad platform.

On December 20, 2017, the workers and CWA filed a massive class action lawsuit challenging the practice of employers hiding job ads from older workers when recruiting via Facebook, shining a bright light on a systemic, nationwide practice that had not faced prior public scrutiny.   The lawsuit is pending in the U.S. District Court for the Northern District of California in San Jose (Case No. 5:17-cv-07232).

A major New York Times and ProPublica investigation highlighted the practices and suit.   In the aftermath of the suit, the Senate Aging Committee, led by Senators Susan Collins (R-Maine) and Bob Casey Jr. (D-Penn.), launched a bipartisan investigation of age bias by social media companies, including Facebook, that recruit workers online.   The AARP condemned age-restricted job ads shortly after Facebook publicly defended the discriminatory practice of age-based targeting for employment purposes ” as an accepted industry practice. ”

Today, the older workers and CWA announced new steps in their national campaign to stop age bias in online recruitment.   The new developments include:

(1)   Filing an amended federal court complaint that significantly expands the scope of the litigation against hundreds of employers that discriminated against older workers.   The new complaint adds federal age bias claims under the Age Discrimination in Employment Act on behalf of all older workers 40 and over nationwide who were denied job ads by hundreds of employers, employment agencies, and Facebook.     The case previously asserted only claims under certain state laws.

(2)   The new complaint alleges that Facebook’s own algorithm discriminates against older workers, since it appears to use age to decide which Facebook users will receive job ads.   The complaint alleges that this practice compounds the problem of employers manually selecting a younger age range of people who will receive their job ads.

(3)   CWA and the older workers have disclosed for the first time that they have filed age discrimination charges with the Equal Employment Opportunity Commission against 38 employers and employment agencies, including Facebook.   Eighteen of the charges were filed today.   The EEOC has now opened a federal investigation against dozens of companies.  

(4)   The new complaint and EEOC charges identify by name dozens of major employers that used Facebook to send job and employment-related ads that were hidden from older workers.     They include national and regional companies in virtually every industry, including: T-Mobile, Amazon.com, Cox Communications, Cox Media Group, Arhaus, Capital One, Citadel, Defenders, Facebook, Inc., Fairfield Residential, IKEA, Leidos, Sleep Number Corp., Triplebyte, Weichert Realtors, Enterprise Rent-a-Car, and the University of Maryland Medical System.      

Jody Calemine, the chief of staff to CWA’s President, stated: Our campaign seeks justice for every older worker who has been locked out of opportunities by employers who show their job ads to younger workers, but not to older ones.   Today we are redoubling our efforts to ensure that everyone has a chance to learn about job opportunities and apply for those jobs.   We are heartened that members of Congress from both parties and other advocates for older workers have condemned these harmful practices. ”

Peter Romer-Friedman, a civil rights attorney at Outten & Golden LLP and former labor counsel to Senator Edward M. Kennedy, stated: Algorithms and ad platforms may not care about equal employment opportunity, but our civil rights laws require it.   It’s deeply disturbing that major American companies apparently believe it’s an accepted and appropriate industry practice to hide job ads from older workers.   The internet does not give a free license to discriminate. ”

David Lopez, the former EEOC General Counsel and the Partner-in-Charge of Outten & Golden’s Washington, DC office, stated: It’s long past time that employers from Wall Street to Silicon Valley treat older workers fairly in recruiting and hiring.   Fifty years after the Age Discrimination in Employment Act was enacted, too many employers consider age discrimination to be business as usual. ”

In the Complaint, CWA and the workers allege that, through an in-depth investigation, they have discovered that hundreds of employers and employment agencies are illegally targeting their employment ads on Facebook to exclude older workers who fall outside specified age ranges (such as ages 18 to 40, or ages 22 to 45), purposely preventing these older workers from seeing the ads or pursuing job opportunities.   The Complaint alleges that this practice constitutes a violation of federal, state, and local laws that bar age discrimination in employment advertising, recruiting, and hiring.

Exhibit A to the Amended Complaint shows pictures of these companies’ employment ads. The Amended Complaint and Exhibits showing the discriminatory employment ads can be found at www.onlineagediscrimination.com.

The plaintiffs aim to represent millions of job seekers, age 40 and older, who have been denied the ability to even learn of potential job openings. The defendants are large employers and employment agencies in a variety of industries including technology, entertainment, retail, health care, energy, real estate, staffing firms and agencies, and others.

CWA, the workers, and their attorneys are asking the Court to:

  • Declare that the practice of excluding older workers from receiving job ads on Facebook violates laws that prohibit age discrimination in employment.
  • Issue an injunction to stop hundreds of large employers and employment agencies from continuing to engage in acts that violate anti-discrimination laws.
  • Require the employers and employment agencies to compensate older workers who have been denied job opportunities.

The Communications Workers of America represents 700,000 workers in private and public sector employment in the United States, Canada and Puerto Rico. CWA members work in telecommunications and information technology, the airline industry, news media, broadcast and cable television, education, health care and public service, law enforcement, manufacturing and other fields.   More information on CWA can be found at https://www.cwa-union.org/.

Outten & Golden LLP, is an employment and civil rights law firm with 60-plus attorneys and offices in New York, Washington, DC, San Francisco, and Chicago.   More information on Outten & Golden LLP can be found at https://www.outtengolden.com/.