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Older Workers Fine-Tune Bias Suit Over Facebook Job Ads

Law360—Braden Campbell

The Communications Workers of America and a group of workers on Monday restyled a suit alleging a proposed class of employers, including Amazon.com Inc. and T-Mobile, illegally blocked a proposed nationwide class of older workers from seeing Facebook job ads, adding language meant to ward off the companies’ bids to escape the suit.

The union added a California plaintiff and detail to their allegations that the companies used Facebook Inc. as their agent to target younger job applicants in violation of the Age Discrimination in Employment Act, tacking 18 pages onto an already sprawling amended complaint filed with the Northern District of California in May. The union also added claims under California’s Unruh Civil Rights Act, which can yield $4,000 in damages for each illegal job ad.

Outten & Golden LLP attorney Peter Romer-Friedman, who represents the CWA and the workers, told Law360 on Tuesday the changes were meant to address “a number of the arguments that the defendants made in their motions to dismiss and strike regarding personal jurisdiction.”

The CWA and the workers filed suit in California federal court in December alleging Amazon, T-Mobile, Cox Communications Inc. and Cox Media Group Inc. were part of a class of “dozens to hundreds of national companies” that told Facebook to show job ads only to younger workers in violation of California age-bias laws.

The May amended complaint added claims under the federal Age Discrimination in Employment Act that the U.S. Equal Employment Opportunity Commission gave them permission to file after the workers first sued. ADEA plaintiffs must generally get the EEOC’s go-ahead before bringing claims under the statute.

Although the theory behind the suit is based on Facebook’s ad platform, the social media giant is not named as a defendant.

Amazon in July filed motions to dismiss and strike certain allegations from the suit, claiming among other things that the named plaintiffs — none of whom lived in California — had standing to sue there and that the complaint didn’t tie the allegations to California. The other defendants later joined these motions. 

The new complaint aims to rebut these motions, adding as a named plaintiff Renia Hudson, a recently laid-off call center representative from California. The complaint describes her as a Facebook user who is qualified for a range of jobs at T-Mobile, Amazon and Cox, which the suit says were illegally advertised only to younger workers via Facebook.

It also adds on several paragraphs to the prior complaint’s jurisdiction section explaining why the Northern District of California is the right venue for the suit. Not only did the businesses use California-based Facebook as their agent and told it to target younger job-seekers, Facebook’s terms of service directs legal claims to the Northern District of California or San Mateo County state court, the workers say.

And the complaint adds two claims under separate provisions of the Unruh Civil Rights Act. These provisions bar “arbitrary discrimination based on an individual’s age” and forbid businesses from discriminating based on any of several protected characteristics, including age, the workers say.

They add the businesses violated the act “each time an impression of a job ad of the defendant class members was not sent to a person who is 40-years-old or older because the person was excluded from receiving the advertisement because of his or her age.”

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

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