Insight

ACLU Says Facebook's Targeted Advertising Is Discriminatory

By letting advertisers target men in job postings, Facebook may be contributing to gendered discrimination.

Facebook Job Ad Discrimination
DS

Donald L. Sapir

November 1, 2018 02:00 PM

In September of this year, the ACLU filed discrimination charges with the U.S. Equal Employment Opportunity Commission on behalf of three women and the Communications Workers of America against Facebook and 10 employers. The charges allege that Facebook enables employers to target their job advertisements to male users. Using Facebook’s platform and data, employers can target advertising and recruiting information to a male audience.

Facebook requires new account holders to identify their gender when opening their accounts. Advertisers can target their audience by selecting “male,” “female,” or “all” users to receive their ads. Per the ACLU case, Facebook then facilitates the advertisers’ choice by delivering the ads to the gender that has been selected by the advertiser, while excluding all other users from receiving the ads.

In this way, Facebook is serving as much more than a neutral conduit for its advertisers. Rather, Facebook is collecting gender data concerning its users, and then allowing advertisers to use that data for targeted advertising. Facebook is providing the architecture and platform for employers to deliver gender-based ads to their target audience. The result of this selection and targeting process has allegedly been to largely exclude female candidates from recruitment efforts.

Facebook’s involvement in the targeting process is not hidden. When a user clicks on an employment ad, the user also can open a standard Facebook disclosure page that explains why the particular user received the ad. Users are informed that they are seeing the specific ad because, for example, the employer “wants to reach men ages 21 to 50 who live in the United States,” “wants to reach men ages 25 to 35 who live or were recently near [a specific location],” or similar explanations based on gender, age, and location. All of the employers charged by the ACLU targeted men in their online Facebook advertising, and all of their disclosures indicated that the users received the job ad, in part, because of their gender.

These practices would appear to be discriminatory and no different from a printed ad that says “men wanted” or “women need not apply.” But it is not the first time that online advertising has been exposed as having serious deficiencies. In 2016, a ProPublica investigation discovered that Facebook’s advertising platform provided an option for advertisers to target users based on their assigned “ethnic affinity,” effectively allowing employers to avoid advertising to black and Hispanic users. As a result, Facebook renamed the designation as “multicultural affinity” and prohibited the use of the category in ads for housing, credit, and jobs.

Nor is Facebook the first online social media platform to face discrimination concerns over its advertising systems. A 2015 study of Google’s advertising system showed that high-paying executive job ads were served to men at a far greater rate than the same ads were to women. In one experiment, Google displayed advertisements for a career coaching service for executive jobs paying in excess of $200,000 to a group of male job seekers 1,852 times, and only 318 times to a female group. Without access to Google’s advertising platform and ecosystem, the study could not make any conclusions about the specific reasons for the disparities.

In addition to the explicit targeting of men, there are various implicit biases against the equal hiring of women in the corporate social media world, including corporate website photographs of employees. Often, the images are of white men in leadership, with women pictured in support roles. Such pictures may send discouraging messages to women about the work environment at the company, and they may negatively impact the way the company is perceived.

The way job ads are written may also have a discriminatory impact, even if no discriminatory intent exists. The use of specific language in job advertising can reveal a bias against women and discourage them from applying for jobs. A study by Totaljobs, a leading job board in England, revealed that a substantial number of ads carried an unconscious gender bias expressed through gender-coded language: male-gendered words included “lead,” “analyze,” “competitive,” “active,” and “confident.” Female-gendered words included “support,” “understanding,” “dependable,” “committed,” and “responsible.” The same research found that the use of titles such as “head,” “director,” and “partner” favored male applicants. When gender-biased language is removed from job advertising, the number of applicants rises significantly.

Targeted job advertising, such as that allegedly facilitated by Facebook, as well as unconscious or implicit bias in advertising, is ubiquitous and helps to perpetuate a world in which job bias against women exists and flourishes. To make this point, one researcher did a Google image search for “CEO.” The results were astounding but likely not shocking: 85 percent of the CEO images were of men; only 15 percent were female. In 2017, only 32 of the 500 CEOs of Fortune 500 companies—or just over 6 percent—were female.

We tend to think that technology, including all forms of social media, has made our lives easier, and that its tools are largely objective. But the ecosystem of social media, including the complex algorithms programmed by human beings to manage and mine vast amounts of data, and taught to learn from user behavior, is necessarily embedded with a great deal of subjectivity. This has helped to perpetuate existing discriminatory patterns, whether it intends to or not. Such behavior, conscious or implicit, and the technology used in job recruiting and advertising, must be examined in depth so that we can effect change and eliminate discriminatory employment practices that significantly disadvantage women. The charges against Facebook may be an important step in eliminating discrimination in hiring.

-----------

Donald L. Sapir has been a practitioner of labor and employment law for more than 36 years. He has had experience representing employees from all walks of life, businesses both large and small, and labor organizations and their affiliated pension and welfare funds.

The author thanks his associate, Ann L. Moscow, for her assistance with this article.

Related Articles

Facebook Whistleblower Testimony Shines A Light On Credibility Factor


by Justin Smulison

Landmark whistleblower testimony was provided on Capitol Hill which may have a national—and even worldwide—effect on how governments regulate Big Tech companies.

Capitol Hill Facebook Whistleblower Testimony

Internet Speech in the Crosshairs


by Ari Holtzblatt and Jamie Gorelick

Charges of anti-right bias notwithstanding, online platforms are on solid ground when they defend their policies and procedures as neutral and protected by the First Amendment.

Is Internet Speech Protected?

In the News Weekly Roundup: Facebook's Free Speech Controversy


by Best Lawyers

Recent news from Best Lawyers listed lawyers and firms. New hires at Akerman and King & Spalding, and a win for Greenberg Traurig.

Will Facebook Err on the Side of Free Speech?

Social Media and Other Innovations Are Jarring the Judiciary


by Michelle V. Rafter

Judge Shira A. Scheindlin means it when she says social media is “totally disrupting the court system.”

Law: Predictive analytics & social media

My Data My Rules: An Overview of Data Protection in Brazil


by Fábio Pereira

My Data My Rules

What's Wrong with WhatsApp?


by Matthew Critchley

A court in Brazil temporarily blocked access to WhatsApp on the basis that its owner had shown “total disrespect for Brazilian laws." What happens now?

Accessing WhatsApp

Trending Articles

Presenting The Best Lawyers in The United Kingdom 2024


by Best Lawyers

Best Lawyers is proud to announce the 12th edition of The Best Lawyers in the United Kingdom™ and Best Lawyers: Ones to Watch™ in the United Kingdom for 2024.

Big Ben and bridge over water in London at sunset

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in New Zealand™ 2024 Awards


by Best Lawyers

The Best Lawyers in New Zealand 2024 awards include an elite field of top lawyers and law firms.

Auckland, New Zealand Skyline at twilight

Presenting The Best Lawyers in Singapore™ 2024


by Best Lawyers

Best Lawyers offers the most prestigious awards for lawyers and law firms in Singapore for 2024.

Singapore skyline at night

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Announcing The Best Lawyers in Japan™ 2024


by Best Lawyers

We are proud to present the 2024 edition of Best Lawyers awards for Japan which include the top lawyers and law firms in the country.

Mt. Fuji in the background with fall leaves and structure in front

IN PARTNERSHIP

Salvi & Maher, LLP: Illinois and Wisconsin's Personal Injury Firm


by Justin Smulison

For more than 35 years, Salvi & Maher LLP has defended their clients throughout Illinois and Wisconsin in various areas of personal injury law, including medical malpractice, motor vehicle accidents, premises liability and trucking litigation.

Skyline of Chicago with green river and blue background

IN PARTNERSHIP

Athea Trial Lawyers


by Justin Smulison

Athea Trial Lawyers is a nationally recognized firm who has received record-breaking victories throughout the country on behalf of personal injury victims.

women with shades of blue in mass arrangement

IN PARTNERSHIP

Mastering the Art of Trial Practice


by John Fields

With its billion-dollar track record, Morelli Law Firm has earned a reputation as one of the country's most successful trial firms.

Morelli and team at table in office with windows

IN PARTNERSHIP

Rash Mueller Knows What it Means to Help


by Jeffrey Beasley

David Rash of Rash Mueller draws from first-hand experience on the affects of tragic personal injury and loss. His Florida law firm has spent years dedicated to helping the injured find justice.

Doctor with scope reviewing brain scan on screen

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Announcing The Best Lawyers in The United Kingdom™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

The Role of a Lawyer in the Slip-and-Fall Settlement Process


by Best Lawyers

Let’s examine the role of a lawyer in the slip-and-fall settlement process and how they can help you achieve a fair and just outcome for your case.

Unseen man with wrap on wrist sits across from woman in suit

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?