Amazon Can't Duck Bias Claims Over Job Ads, Judge Hears

Law360—Braden Campbell

Amazon, T-Mobile and other national employers violated age bias laws by aiming Facebook job ads at younger workers even if they didn’t block older workers from applying, three older job seekers said Monday in a memo urging a California federal judge not to dismiss their proposed class suit.

The job seekers blasted Amazon's claims that the company and other employers didn't violate the Age Discrimination in Employment Act and its state counterparts because older workers could still seek and obtain jobs, saying it's enough that the employers denied older workers job listings, deterring them from applying and shrinking the number of older job seekers who applied.

"It would undermine the ADEA's key remedial purposes — 'to promote employment of older persons based on their ability rather than their age' and 'prohibit arbitrary age discrimination in employment' — to interpret [the ADA's publication provisions] only to limit an ad's content and not bar ad campaigns that are deliberately hidden from older workers," the job seekers said.

Such an interpretation of the ADEA and state bias laws would lead to "absurd results" by letting employers show their job ads only to younger white men while hiding them from women, people of color and older workers, the job seekers say.

The memo, filed alongside a brief opposing the employers' motion to strike the job seekers' class claims, urges the Northern District of California to keep alive a novel suit applying statutory provisions that block "whites only"-type wanted ads to the digital age.

The December 2017 suit alleges the employers violate the ADEA's so-called publication provision by directing Facebook job ads only to users within a certain age range. The job seekers' suit  which includes the Communications Workers of America as a plaintiff — is filed as a class action on both sides, alleging the named employers are part of a defendant class that illegally weeded "millions" of older Facebook users out of their talent searches.

The publication provision makes it illegal for employers to "print or publish" job ads "indicating any preference, limitation, specification or discrimination, based on age." The job seekers say employers need not explicitly turn away older applicants for the provision to apply, arguing an ad campaign that blocks members of certain protected classes from seeing ads "causes at least the same harm and offends the same purpose of non-discrimination as an ad that has discriminatory content."

"A job ad that states an employer wants to hire recent college graduates will 'discourage the older job hunter from seeking that particular job and denies them an actual job opportunity,'" the job seekers said, citing a 1975 ruling by the Fourth Circuit. "But an ad campaign that targets ads to prevent people in a protected class (e.g., older workers) from seeing the ad causes even greater harm as class members lose out on the chance to hear about an opportunity and pursue it."

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The job seekers on Monday also called Amazon's motion to strike the class claims on either side of the suit "premature." They say the retailer's argument that each job seeker's circumstance is too unique to fit into a class action focuses on "irrelevant distinctions" between job seekers and ignores the "identical factual elements and legal questions" tying them together. They also push back on Amazon's arguments the job seekers can't press claims against a class of defendants under their chosen mechanism, arguing Ninth Circuit precedent explicitly lets them do so.

The job seekers' attorney, Peter Romer-Friedman of Outten & Golden LLP, said the case raises an "incredibly important issue."

"This case is really about the future of equal opportunity in our digital economy," he told Law360 on Tuesday. "It really boils down to whether our civil rights are going to be equally respected and implemented in the digital economy."

The CWA and the named plaintiffs are represented in-house by Patricia Shea and Katherine A. Roe and by Peter Romer-Friedman, P. David Lopez, Jahan Sagafi, Adam Klein, Robert Fisher and Jared Goldman of Outten & Golden LLP.

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The case is Communications Workers of America v. T-Mobile US Inc., case number 5:17-cv-07232, in the U.S. District Court for the Northern District of California.