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Are Facebook Breaching Age Discrimination Law?

Facebook has provoked accusations of age discrimination after it emerged the social network allowed companies to post job adverts targeting only younger people.

Global companies including Amazon, Goldman Sachs and Facebook itself placed recruitment ads limited to particular age groups, according to an investigation by ProPublica and the New York Times in the US.

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A Sunday Times investigation found a number of companies in the UK, including Shell and the recruitment firm Indeed, had set age limits on their Facebook posts to restrict who could see ads for certain positions.

Facebook and some of the employers concerned have defended the use of this type of advertising.  However, it is now the subject of legal action in the courts in the US by the Communications Workers of America union, represented by law firm Outten & Golden. 

So what does UK law say about age discrimination?

The placing or publishing of a discriminatory advert unlawful under The Equality Act. This legislation prohibits less favourable treatment (including in relation to recruitment practices) because of age. It protects individuals based on their age (e.g. 55) as well as being part of an age bracket (e.g. under 25 or over 40).  The Equality Act protects individuals of all ages from discrimination based on their age, not just older workers.  There are certain circumstances where direct age discrimination (unlike sex or race discrimination) may be justified but these are limited.

The companies who are placing these targeted ads will say that this is not the same as publishing a discriminatory ad seeking individuals in that age bracket only.  But if digital ads are only popping up in the feeds of people of a certain age, a company is sending a clear message that they want to recruit from that age bracket or has a preference for recruiting from that age bracket and this could give rise to an inference of bias and direct discrimination in their recruitment process.

It would be interesting to know the ages of the people who are ultimately appointed to the roles advertised in this way.  If they all fall within the targeted age bracket, this would provide even clearer evidence that the practice is discriminatory not just in intent but in effect. 

Does the UK law provide any redress in this situation?  

Adverts that suggest the employer will apply discriminatory criteria when recruiting may give rise to two types of legal action:

  • An employment tribunal claim by an unsuccessful applicant or a person who was deterred from applying by the discriminatory advert.
  • County Court action by the Equality and Human Rights Commission for a declaration or an injunction to stop the discriminatory advertising even if no actual victim can be identified.

The pernicious aspect of this practice is that if the ad is only targeted at certain audiences, people of other age groups have no way of knowing they have missed out on the opportunity.  Even if the ad is placed elsewhere e.g. on a company’s recruitment page, it may not bring it to the attention of as many people in different age brackets and this will naturally limit the pool of people who apply.   The wording of the ad may not be overtly discriminatory but targeting it this way may have the same purpose and effect, making it a discriminatory practice. 

The law often struggles to keep up with technological change so it does not address this practice explicitly.  There is currently no case law on it in the UK but it will be interesting to see how the US courts treat it.   

What should you do if you think you’ve faced this sort of age discrimination?

The difficulty for most potential candidates is that they will not be aware they have been excluded.  However, if you go for a job and do not get it, you can always ask for feedback.  In the course of any litigation about age discrimination, you can also ask a company about its recruitment practices, how and where the job was advertised, for how long and whether they engaged in age-targeted digital advertising.  If they did, this could give rise to an inference of age discrimination.  It may help to take advice from a trade union rep or a specialist employment lawyer if you do want to take things further.  If you do want to take legal action, it is important to act swiftly because there are strict time limits for bringing discrimination claims in the Employment Tribunal in the UK – usually within three months of the discriminatory decision or act. 

This is why it is something that the trade unions and the Equality and Human Rights Commission should be investigating and acting on.    

Should Equality and Human Rights Commission take action in relation to age discrimination?

The Equality and Human Rights Commission has the responsibility to challenge discrimination, promote equality of opportunity and protect human rights in the UK. The EHRC’s own Code of Practice states that an employer must not discriminate in its arrangements for advertising jobs or by not advertising a job. Neither should they discriminate through the actual content of the job advertisement.  They give examples of the types of approach which might directly or indirectly discriminate based on age.

Age-targeted digital advertising is precisely the sort of practice the EHRC should investigate.  Being excluded from receiving job ads is a big problem for older workers in the modern digital economy.  It confirms what we have known for a long time from our experience as employment lawyers which is that employers discriminate against older workers – in recruitment decisions as well as in selection for redundancy, for example. 

A number of employers and the platforms on which these ads have been placed believe they are acting lawfully and have not rectified the position.  This also reflects a common attitude we see from employers which is that age discrimination is not as serious as other types of discrimination.  Can you imagine if companies openly admitted to targeting their ads by gender or race and then said it was not discriminatory?  There would be a huge outcry. 

EU law prohibits age discrimination and this is a practice which is likely to be of interest to the European Commission as well as the UK’s EHRC, as US regulators and lawmakers are already starting to investigate it.

If you have experienced age discrimination, contact the employment solicitors at Slater and Gordon Lawyers on freephone 0800 916 9060 or contact us online.

Claire Dawson is an employment lawyer at Slater and Gordon Lawyers in London. 

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