Is this different than advertising in a magazine that has a specific reader demographic? Or would that get a company in trouble too, if a the court rules that the intent was to exclude a given group?
Specifically ad-targeting to 20-35 year olds seems like a much more clear violation of the rules, simply because it is explicit.
Hypothetical example: a local employer puts up a job flyer at a college campus, but does not put the flyer up at the senior center across town. I could see a court ruling this illegal, if the employer did this specifically to try to attract younger workers.
Is it ok to recruit at a college job fair?
While the college job fair demographic is statistically biased to the young, there are people over 40 who go to college. As long as the recruiting opportunity is made known to the over-40s as well as those younger, it would seem ok to recruit at a college job fair.
Not ok would be to decline to interview those over 40, keep them from learning about the opportunity, or otherwise exclude them from the process, based on their age.
And the presence of a targeted ad doesn't prevent excluded people from actually going to a job posting site. If the job posting site was doing this with people's Facebook session (or other way of knowing age), I would be alarmed and appalled. If a company was doing this on their career site I was be up in arms.
But Facebook running ads where some of them happen to be job related ads in the same place that other random ads appear? Ehhhhhhhhh
Segmentation is a common characteristic of online advertising campaigns. A sophisticated advertiser never shows the same types of ads to young and old audiences (especially on Facebook) because the two audiences react drastically different. If your goal is to run efficient campaigns, you will always separate the two.
As a result, the advertiser can simply claim that they separated the two, and then realized they simply couldn't afford the CPC of the older audience (i.e. the ROI didn't make sense). Alternatively, they could just set a very high bid for the older audience and never get any traffic to those segments.
Overall, I think you'd be hard pressed to prove discriminatory intent even if it exists.
> But some companies contend that there are permissible reasons to filter audiences by age, as with an ad for entry-level analyst positions at Goldman Sachs that was distributed to people 18 to 64. A Goldman Sachs spokesman, Andrew Williams, said showing it to people above that age range would have wasted money: roughly 25 percent of those who typically click on the firm’s untargeted ads are 65 or older, but people that age almost never apply for the analyst job...
> Pauline Kim, a professor of employment law at Washington University in St. Louis, said the Age Discrimination in Employment Act, unlike the federal anti-discrimination statute that covers race and gender, allows an employer to take into account “reasonable factors” that may be highly correlated with the protected characteristic, such as cost, as long as they don’t rely on the characteristic explicitly.
Seems like they should be advocating (at least in this use case) to stop the discrimination to increase profits.
It's even been to the Supreme Court[1]:
> In the 2004 decision General Dynamics Land Systems, Inc. v. Cline, the U.S. Supreme Court settled a conflict among the lower courts over the viability of so-called “reverse age discrimination” claims under the ADEA. Reverse age discrimination involves claims by younger employees who allege they have been discriminated against because of their youth.
> ...
> The Court observed that “if Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under forty.”
> ...
> In the wake of the Cline decision, the Equal Employment Opportunity Commission (EEOC) issued a new rule in July 2007, which specifically addresses reverse age discrimination and provides that employers aren’t liable under the ADEA when they prefer older workers over younger ones. ...
> While a help-wanted notice can’t contain terms and phrases that limit or deter the employment of older employees, businesses may lawfully post advertisements that express a preference for older individuals.
[0]: https://www.eeoc.gov/youth/age.html
[1]: http://www.hrhero.com/hl/articles/2009/10/23/can-employers-d...
What's going to happen to the companies that clearly engage in it?
My guess is nothing and for some reason they think doing this is valuable.
The end result is that they'll keep on doing it until it hurts them in any way.
Intent matters, and judges and juries, while not perfect, do a reasonable job of assessing it. One factor that usually works in the favour of justice is that lawsuits usually target the companies, and there are always at least some employees who do the calculation and decide not to perjure themselves for the financial benefit of their employer.