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Class Action Alleges Age Discrimination in Job Advertisements on Social Media

While Title VII of the Civil Rights Act of 1964 is considered to be the primary federal antidiscrimination law, the Age Discrimination in Employment Act (ADEA) of 1967 also provides important protections for workers nationwide. Both the ADEA and New Jersey’s antidiscrimination statute prohibit employers from advertising job openings in ways that restrict eligibility on the basis of age. A pending federal class action against several major companies addresses a relatively new method of advertising. The lawsuit alleges that the defendants restricted the visibility of job advertisements on social media to users in certain age ranges. Several recent decisions by the Equal Employment Opportunity Commission (EEOC) support the plaintiffs’ position that this violates the ADEA’s advertising restrictions.

The ADEA’s protections against age discrimination apply to workers who are at least forty years old. 29 U.S.C. § 631(a). The New Jersey Law Against Discrimination (NJLAD), on the other hand, does not set a minimum age but states that employers may “refus[e] to accept for employment or to promote” a person who is more than seventy years old. N.J. Rev. Stat. § 10-5:12(a). Both statutes prohibit the publication of job advertisements that demonstrate “any limitation, specification or discrimination” based on age. 29 U.S.C. § 623(e), N.J. Rev. Stat. § 10:5-12(c). Job listings that only purport to limit the eligibility of minors typically do not violate these statutes, since minors are subject to separate work restrictions. A job advertisement stating that a job is only open to applicants between the ages of eighteen and forty would violate both the ADE and the NJLAD.

In July 2019, the EEOC issued determination letters to seven companies based on charges filed under the ADEA. All of the charges alleged unlawful posting of job advertisements on the social media platform Facebook, which allows companies to target advertisements to certain audiences. The EEOC reported that it found evidence that the companies “used language to limit the age of individuals who were able to view the advertisement.” It notified the companies that it had found “reasonable cause to believe that [they] violated the ADEA.”

This seems to be the first time the agency has examined job advertisements on social media under antidiscrimination law. A review by ProPublica in 2018 reportedly found that fifteen employers had used Facebook to target male users with job advertisements, excluding women. This does not, however, appear to be the subject of formal legal challenge.

The class action mentioned above was originally filed in December 2017. The three lead individual plaintiffs range in age from forty-five to sixty-seven and have made their careers in telecommunications. The fourth named plaintiff is a union representing telecommunications workers cross the country. The defendants include four major telecommunications employers.

In an amended complaint filed in May of 2018, the plaintiffs show several job advertisements posted to Facebook in 2018 or earlier. They appeared on users’ news feeds as “sponsored” posts. The information allegedly obtained from Facebook indicates that the ads were targeted to users in specific age ranges, including “18 to 38” and “21 to 55.” The plaintiffs claim that this violates the ADEA.

The Resnick Law Group’s experienced and skilled antidiscrimination lawyers represent workers in New Jersey and New York in claims for age discrimination and other unlawful employment practices. Please contact us online at 973-781-1204 or at 646-867-7997 today to schedule a confidential consultation with a member of our team.

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