Last fall ProPublica revealed that the U.S. Equal Employment Opportunity Commission has cited employers for discriminatory targeting of job ads on Facebook.  The ads in question excluded women and older workers through use of the micro-targeting tools provided by Facebook’s advertising platform.  Early in 2019, a similar practice came under fire by the Department of Housing and Urban Development in the context of housing ads and just this past December, Facebook began expanding its efforts to prevent advertisers from discriminating and announced that it will include housing ads in its searchable public database Ad Library.  The move is seen as an effort to fend off criticism that its ads could be used to target audiences based on certain characteristics.

For those unfamiliar with online advertising, many platforms, including Facebook, allow ad buyers to select groups of users to be shown the ads.  This practice is perfectly appropriate when used for many goods and services, such as targeting certain video game advertisements at younger users.  However, where it is used to prevent a protected class from becoming aware of job openings or available housing, it runs the risk of being classified as illegal discrimination.

Employers may have considered the ad targeting to be an efficient way to use limited marketing funds to reach out to those most likely to apply.  Unfortunately, government regulatory agencies do not see it that way, and cost-savings are unlikely to be viewed as a legitimate defense to allegations of intentional or unintentional discrimination.

For its part, Facebook reports that it has made changes to its platform to limit the ability of users to target advertisements for certain products in ways that might run afoul of anti-discrimination laws.  Facebook removed the ability to target by age, gender, or zip code for housing, employment, and credit offers.

While Facebook has some of the most accurate and granular demographic details about its users, it is not the only company to offer similar advertising targeting functions.  Any company advertising for a product or service, particularly those in highly regulated areas such as employment or housing, should take care to ensure that it is not inadvertently creating a discrimination claim when it decides how it will target the users who will be shown ads.