In Historic Decision on Digital Bias, EEOC Finds Employers Violated Federal Law When They Excluded Women and Older Workers From Facebook Job Ads

WASHINTON — The Communications Workers of America (CWA) announced yesterday that the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces federal equal employment opportunity laws, has issued a historic decision finding reasonable cause that seven American employers violated federal law when they sent job ads on Facebook that excluded women, older workers, or both from getting those job ads. The employers who received the finding are Capital One, Edward Jones, Nebraska Furniture Mart, Enterprise Holdings, Renewal by Andersen, Drive Time Auto, and Sandhills Publishing Co.

Federal law bars employers from engaging in discriminatory advertising and hiring based on sex, age, and other statuses. Since 2018, CWA and several workers have filed discrimination charges against 66 employers that allegedly excluded older workers, women, or both from their job ads on Facebook. (10 charges challenge gender and age bias, and the other 56 challenge age bias only).

The EEOC has now ruled on seven of those charges, “find[ing] reasonable cause to believe that” the named employers “violated” Title VII of the Civil Rights Act or the Age Discrimination in Employment Act (ADEA), because they engaged in the practice of “advertising on a social media platform and limiting the audience for their advertisement[s] to male” applicants or to “younger applicants.” “Upon finding that a violation has occurred,” the EEOC has invited the parties to attempt to settle the charges. The dozens of other pending charges raise the same factual and legal questions as the charges the EEOC has ruled on already.

“All workers deserve a fair chance to get a good job,” said Sara Steffens, the Secretary-Treasurer of the Communications Workers of America. “The EEOC’s rulings should send employers a strong message that they can’t unfairly lock workers out of opportunities based on their gender or age. CWA will continue to fight to hold employers accountable for unjust discrimination.”

“This historic decision shows that our civil rights laws apply to digital advertising and recruiting. It underscores that the internet is not a civil rights free zone,” said Peter Romer-Friedman, Counsel at Outten & Golden LLP. “The EEOC is clearly saying that all workers deserve an equal opportunity to hear about jobs and that employers cannot deny workers job ads based on their age or sex.”

“These rulings have far-reaching consequences,” said Galen Sherwin, Senior Staff Attorney at the ACLU Women’s Rights Project. “Today’s job seekers increasingly use online platforms rather than traditional help-wanted ads to find jobs, and more and more employers use social media and other digital tools to advertise to and recruit workers. This ruling sends a message that employers don’t get a pass to avoid anti-discrimination laws simply by posting their ads online.”

The plaintiffs in 10 of the sex- and age-bias charges filed with the EEOC in September 2018 are represented by Outten & Golden LLP and the ACLU. Outten & Golden also represents plaintiffs in 56 age bias charges filed with the EEOC since January 2018 and represents the CWA and workers who are currently litigating a proposed class action lawsuit in federal court alleging that Amazon and T-Mobile excluded older workers from getting their job ads. That case is Communications Workers of America v. T-Mobile US, Inc. and Amazon.com, Inc., No. 17-cv-07232-BLF (N.D. Cal.).

In March 2019, CWA, Outten & Golden, and ACLU reached a groundbreaking settlement with Facebook under which Facebook agreed to make major changes to its ad platform to prevent advertisers from discriminating when sending job, housing, and credit ads in the future. The first stage of those changes is scheduled to be completed by September 30, 2019. The 66 pending EEOC charges against employers and the CWA v. T-Mobile and Amazon litigation seek to hold accountable the employers who allegedly sent age- or gender-restricted job ads on Facebook prior to the changes to Facebook’s platform.

In its ruling, the EEOC found reasonable cause to believe that Nebraska Furniture Mart, Renewal by Andersen, and Sandhills Publishing Co. violated Title VII and the ADEA by excluding women and older workers from getting their job ads. It also found reasonable cause to believe that Capital One, Edward Jones, Enterprise Holdings, and Drive Time Auto violated the ADEA by excluding older workers from getting their job ads.

The EEOC’s determinations regarding the seven employers are available at: https://www.onlineagediscrimination.com/sites/default/files/documents/eeoc-determinations.pdf

The gender bias charges against Nebraska Furniture Mart, Renewal by Andersen, and Sandhills Publishing Company (Need Work Today) are available at https://www.aclu.org/cases/facebook-eeoc-complaints.

The terms of the settlement agreement with Facebook are available at https://www.aclu.org/legal-document/exhibit-describing-programmatic-relief-facebook-settlement.