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Comment by tdurden | Hacker News Reader

So does this mean that targeted ads are now considered discrimination?

Yes. If you are, for example, placing rental or property ads that filter by race, age, or gender that is the official description of it.

and yet, by having a profile of the user, it is quite possible to "easily" find proxies for the above traits, and target those proxies instead, and thus dodge the legality issue. For example, using income.

Does that really dodge the legal issue?

I thought it had been shown that using proxies to discriminate is still illegal if the intention was to discriminate against a protected class.

It dodges the legal issue if you're very careful with your paper trail and get a sympathetic jury.

You won't get a sympathetic jury. People don't have a lot of empathy for algorithms. Maybe empathy for the people who write them, and then only maybe. But you'll be up against a huge slate of expert witnesses explaining how we already have lots of open sourced methods for teasing out these sorts of indirect indicators.

And if you have an algorithm, that algorithm can be dragged into court itself. The prosecutor can show what happens when inputs are fed into it that are identical except for specific information (age, race, sex).

The paper trail won't matter if your "accidentally" discriminatory policies are not directly related to the position you are hiring for. It is the effect of the employment policies that matter under US law.

> The laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, if the polices or practices at issue are not job-related and necessary to the operation of the business. [0]

[0] https://www.eeoc.gov//laws/practices/

I was under the impression that any kind of "disparate impact" crossed the line of legality regardless of intent

No actually you can’t use such things legally. Discrimination is discrimination no matter how you bury it with indirection.

redlining and similar practices are still usually illegal, although it is probably easier to cover up.

"Dodging" legality issues creates new, and much more exciting for your defense attorney, legality issues.

At which point virtually any targeting criterion is, to some degree, a proxy for criterion targeting a protected class, and targeting at all becomes impossible.

Even by advertising on Facebook in the first place, you could argue they're discriminating against people who don't use Facebook. I'm sure you could find a protected demographic with lower-than-average Facebook usage to support this.

Going one step forward, you can say that any company that advertises on any channel and not on all other possible channels (TV, outdoor, print) is discriminating. If you can prove a gender is watching more TV than the other, then it is gender discrimination.

This entire discrimination thing is crazy. Yes, a company can discriminate intentionally and not accepting or failing certain candidates based on demographics OR it simply chooses where to spend the marketing money for the best impact. Like not advertising a bra to men, not because men don't wear a bra (some may do), but because the impact per dollar of advertising it to men is reduced. Discrimination!!!

First, your argument is completely silly to the point of not being taken seriously.

Now, no one gives a shit about how advertising tampons to women discriminates against men. And no one gives a shit that Axe body spray is targeted to males of a certain demographic. What the government is concerned about is how advertising jobs, housing, and finance can be discriminatory.

If you post an ad for a job that targets exclusively men, you are in violation of the Civil Rights Act (Title IX), and the American Disabilities Act.

If you post an ad for an apartment that targets white males you are in violation of the Housing and Community Development Act and the Civil Rights Act.

If you post an ad for mortgages or other financial vehicles that targets a certain demographic and even certain neighborhoods you are in violation of the Civil Rights Act, and the Equal Credit Opportunity Act.

There is no law against marketing bras to women, beers to men, or Cialis to the elderly. Housing, employment, and access to credit are some of the foundational services that the government has deemed any discrimination is bad. There is no one step forward because there is a clear line drawn in the sand that anyone with a basic understanding of these laws will know.

Other commenters have said that disparate impact is enough to trigger liability, so targeting proxy characteristics would not help in that case.

I wonder what would happen if someone found out that Facebook's algorithm was discriminating based on race, age, or gender for any of these categories that are illegal.

Lawsuits, for example

https://www.washingtonpost.com/business/2019/03/28/hud-charg...

When you target against protected classes, yes.

Facebook has a history of facilitating this type of thing and crying ignorance later. A local landlord was caught using Facebook to target apartment listings to people who weren’t black, Hispanic, Jewish, or gay.

As a white male, I'd like to get in on that protected class bit. No one should be seeing targeted ads if they don't want to, regardless of birth status.

You're in! Race, color, and sex are all federally protected classes[1]. So for things like employment or housing ads it's illegal to exclude (or include) you based on being white or a male.

[1] https://content.next.westlaw.com/Document/Ibb0a38daef0511e28...

Is it enforced that way?

Targeted ads for some things, like jobs or housing, are considered discrimination. Ads for most products can be targeted.

What is the difference between those classes of goods? What non-arbitrary rule should we use as a society to determine if a product/service can be targeted or not? Seems to me that every time this subject comes up, an arbitrary list of things are considered protected by whoever is making that point.

These aren't arbitrary judgment calls. There are laws.

And sure, the existence of those laws might be arbitrary. But the laws themselves are specific.

Except the existence of laws against racial/age discrimination in housing and employment are not arbitrary. Those laws were passed in response to actual and widespread discriminatory behavior in the mid 20th century.

OK, maybe arbitrary isn't exactly the right word. I meant that there's no indisputable link between ethics/morality and law.

You say that they "were passed in response to actual and widespread discriminatory behavior". That's true. But they wouldn't have been passed, notwithstanding discrimination, without enough political support (of one sort or another).

I mean, there's also been discrimination in health insurance rates based on preexisting conditions. And gender-based discrimination in vehicle insurance rates. The Affordable Care Act more-or-less restricted the first. But the second is still the norm in the US.

I would say the second one should be illegal.

There is plenty of ways to lawfully discriminate in this country. You can even still have discriminatory policies in employment if you can show it directly relates to the job.

I guess the poor guy did not ask about the law, that part was obvious. Some people choose to ignore the logic and morality and hide behind "this is the law" excuse, that does not help in this case: if the law is right, just explain how, if the law is broken, say it so.

Fair enough. But it's murky. I mean, it's arguable that any discrimination based on existential stuff -- such as gender, "race" and disability -- is immoral. Because it's just who you are, not something that you've chosen, something that you're responsible for.

Also, when it's about stuff like housing and services, there's not much basis for discrimination. Except for providing access to those with disabilities. And that seems fair.

When it's about employment, even if there are data that might justify discrimination, it's all about statistical distributions for populations. So there's too much uncertainty when you apply it to individuals. And there's also the fact that untangling innate/genetic and developmental/sociological factors is impossible.

For health and life insurance, basing rates on age and preexisting conditions clearly makes economic sense. Older people will likely cost more than younger people. And people diagnosed with cancer etc will likely cost more than people generlly. But for health insurance, there are social justice arguments that discrimination is unfair.

For vehicle insurance, it's undeniable that young men have more accidents than young women, and middle-aged people generally. And that old people people also have more accidents. At least two factors distinguish that from health insurance. First, there's the sense that people can choose to drive more carefully, and have fewer accidents. Also, there's the argument that driving isn't as essential as medical care.

> Seems to me that every time this subject comes up, an arbitrary list of things are considered protected by whoever is making that point.

It might feel that way to you, but it seems you haven't bothered to look into the history of why certain classes are protected against discrimination in housing, employment, medical treatment etc.

One of those reasons is to fight the tendency for discrimination to create second-class citizens[1]. Along with our society's past and its contemporary history, we also have a several millennia of written history to look back upon to see just how easily and willing we are to make life very bad for people who are discriminated against.

[1] https://en.wikipedia.org/wiki/Second-class_citizen

> What non-arbitrary rule should we use as a society to determine if a product/service can be targeted or not?

Actual past experience with specific, widespread, and demonstrably harmful discriminatory practices.

Widespread discrimination in housing during the 20th century -- and the negative effects that had on certain communities -- resulted in laws prohibiting discrimination in housing ads.

Widespread discrimination in employment during the 20th century -- and the negative effects that had on certain communities -- resulted in laws prohibiting discrimination in employment ads.

BTW, these categories also make sense. Housing (i.e., schooling) and employment have a huge impact on your life outcomes in the USA. Choice of hair product, not so much.

There is actually a minimal agreed upon set of goods, espoused in the Universal declaration of human rights (or your country's equivalent).

For instance, travel services must be free from discrimination:

> Everyone has the right to freedom of movement and residence within the borders of each State.

Or buying property

> Everyone has the right to own property alone as well as in association with others.

Or the issues of this thread

> Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

Or general social servies

> Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, ...

specifically education

> Everyone has the right to education.

A declaration is not a law and there are many countries without an equivalent, some don't even have a Bill of Rights equivalent (Australia is one). That declaration is just a political statement, nothing more.

Targeted ads when it comes to housing (AKA redlining) are illegal under Fair Housing Act of 1968.

https://en.wikipedia.org/wiki/Redlining

It seems to be a textbook form of discrimination.

It's not, though. When I buy a page in Cosmo or something, I'm doing that with the intent and result that mostly women will see it. If targeted ads were illegal, it's hard to see how any publication with non-representative demographics could sell ads at all.

Yes but you don't control if a man or an old person can buy the magazine or not.

While true, its a bit of a nitpick and misses the point GP made.

not really, because people are aware of the fact that they're going to find say, women targeted ads in cosmo, so they can seek them out. The 'discrimination' in this case is simply aggregate consumer preference, every individual outlier still gets precisely the content and ads they want.

If facebook displays housing ads only to white people a black person is very likely not even aware that they're being discriminated against in some specific way, the entire control is in the hands of facebook and the ad buyer, and intransparent.

The situation would be equivalent if facebook gave you complete control over their algorithm and let you choose what type of ads you want to be exposed to. Which would make discrimination much less of an issue. Or the other way around, the current facebook situation would be akin to the store owner quickly cutting the housing ads out of cosmo as soon as black people walk into the store.

No. If you place an ad on Facebook for housing and choose to exclude people who identify as "black", there's no way for those people to find your ad, save for creating a new Facebook account and pretending to be white.

Anyone is welcome to purchase a copy of Ebony magazine. It's targeted, but it's not exclusive.

Is it really any better to make people choose just really good proxies for their intended audience which theoretically anyone could be a member of but in practice is not that way?

And if this isn’t really any better, where does that leave you?

Where else would you draw the line? I don't think what I described is a real problem in practice. Housing and jobs are often advertised in rather neutral publications, not special interest ones. But what Facebook enables goes beyond targeting based on interest, it's explicitly exclusionary.

If your local newspaper could print a special edition for minority subscribers that didn't include job listings, that would be a problem. Advertising in a special interest publication is not, on its own, a problem. Of course there's no clear lines in reality, everything must be evaluated in context.

But should Ebony be allowed to market ads on Facebook and exclude white people? I honestly don’t know where I come down on this issue: it feels different to say, “we have a better ROI if we exclude certain demographics from seeing our ads” than to say “black people can’t eat at this diner.”

Let’s take a company like REI: is it wrong for them to put their stores in places that are most profitable? Should luxury good companies be required to have store fronts in inner cities?

I’m legitimately not sure I’m comfortable with either answer. “Women / older people are unlikely to respond to this ad; so we’ll have a better ROI by excluding those groups” feels awkward but like a legitimate business interest. If I sell male hygiene products can I exclude women from seeing the ads, not because I don’t like women but because the ad is less likely to be relevant?

“I don’t want to work with women or older people so I’ll not show them the ad” feels unquestionably wrong.

The short answer is: it depends. I don't think you'll run into much trouble in excluding women from your ads for beard care products, but you might of you're excluding them from your ads for housing.

I think you have to consider intent as well as outcome.

There is no might there are specific laws governing advertising when it comes to jobs and housing that don’t apply to other areas.

> But should Ebony be allowed to market ads on Facebook and exclude white people?

That's not what this thread is about. The question here is what is the difference between advertising on Facebook and excluding some demographics, and advertising in a paper magazine where you don't have the power to exclude anyone from viewing the ad.

Um.. I think most luxury goods stores are in inner cities.

Magazine buyer's aren't a protected class.

I think that's the main reason why buying an ad in Cosmo is different from buying a targeted Facebook ad in terms of discrimination. Cosmo might be written with women in mind but anybody can go and buy it. But it's pretty much impossible for someone who identifies as a man on Facebook to see ads that are only targeted towards women. The Facebook example is more similar to a real estate agent who only shows certain properties to white families.

When you're discriminating illegally, it doesn't usually matter whether it's possible for someone to subvert your discrimination.

Serious question: How is that relevant though?

Here is how I think about it: If my intention is to discriminate against men and publish an ad in a female magazine, sure, I cant control if a man buys and sees the ad or not. But discrimination was my intention to begin with regardless of how effective my efforts were. Besides, those efforts will be pretty effective. Instead of magazine advertising being 100% effective - as is in the case of FB targeted advertising - they will be just slightly less effective (lets say 90% or w/e number you want to put here). That´s because in the magazine´s case we know for certain that that vast majority of female magazine consumption is done by women - That´s literally what they are made for.

So in a sense, we are arguing about degrees of effectiveness rather than the nature of discrimination. Not only is this a slippery slope, but imo it flips everything in business on its head as having a target audience for your product or a service will be considered discriminatory!

> Not only is this a slippery slope, but imo it flips everything in business on its head as having a target audience for your product or a service will be considered discriminatory!

No, it doesn't. If you determine that your target audience watches BET, and you decide to only advertise your product on BET, that's 100% legal.

If you prevented anyone but your target audience from using your service, and you end up discriminating against a protected class, that's a different story.

There are entirely different standards when it comes to hiring and employment.

Facebook is way more like a newspaper than a target demo periodical but even when you put the Ad in Cosmo, you pay for the Ad impression no matter who views the Ad. You, as the advertiser have no control over that impression.

If it were common for, say, nursing positions to be advertised in Cosmo, then presumably male nurses looking for work would know this and be able to buy that magazine.

There is no need for slippery slopes or hypotheticals. All physical advertising platforms have policies against discrimination for job ads and rentals. Newspapers have had stricter requirements for those two areas for years and there are specific laws governing them. Just because it is “on the internet” doesn’t change anything.

Yes you can advertise jobs in Ebony or Cosmopolitan. There is nothing stopping a non Black or man from picking up those magazines.

> How is that relevant though?

It is not. Your intent to discriminate is not necessary for you to fall afoul of US equal opportunity laws. Demonstrating disparate impact of your employment policies on a protected class without a valid business is can be sufficient for you to lose your case.

You hire people through ads in Cosmo? I doubt that.

I don't think the original comment was asking about employment discrimination specifically. I've seen a lot of people get confused on this topic, and end up thinking it's illegal to discriminate by gender on any advertising at all.

The targeted ads in question relate to employment, which is governed by standards for what kinds of discrimination are legal and illegal.

Ok, so are you allowed to place employment ads in Cosmo?

Is it Ok just because it’s overwhelming likely to be women who see it, versus algorithmically targeting women?

That is how it works legally, yes.

No, that is not how it works.

[0] https://www.eeoc.gov//laws/practices/

Are you a lawyer?

I'm not. But I don't believe you are right - advertising in a magazine doesn't exclude people just because their demographic doesn't target them.

If you ran a job ad for a make-up person in women's magazine there is nothing stopping a man who is also interested in make up seeing it and applying.

That is different to the Facebook system, where there was no way for someone from the excluded classes to see the ad.

I am not a lawyer, but I am directly quoting the US Government Agency that is responsible for enforcing these laws.

US employment law prohibits a large number of normally OK employment practices when they have a disparate impact on protected classes.

> For example, an employer's reliance on word-of-mouth recruitment by its mostly Hispanic work force may violate the law if the result is that almost all new hires are Hispanic. [0]

[0] https://www.eeoc.gov//laws/practices/

Can someone tell me, does Cosmopolitan magazine run job ads?

It doesn't.

Working Mother Magazine runs ads for jobs if someone wants a more concrete example to use one way or another

https://jobs.workingmother.com/

> Ok, so are you allowed to place employment ads in Cosmo?

Yes, if you take care to balance your ad placement so that your job opening advertising policy is not biased against protected classes.

> because it’s overwhelming likely to be women who see it, versus algorithmically targeting women?

That doesn't matter. What matters is the end effect of the advertising policy.

In that case the targeted facebook ads would not be illegal if they were balanced by targeted ads at the groups excluded from the first? Or also not illegal if it can't be proven to have had an actual effect?

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