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Union Steps Up Suit Against Big Biz Over Facebook Job Ads

May 29, 2018 / News Item / Law360 — Braden Campbell

The Communication Workers of America expanded its proposed class action Tuesday alleging Amazon, T-Mobile and "hundreds of major American employers" illegally target younger workers in Facebook job ads, adding federal age-bias claims and broadening the case's theory to target Facebook’s audience algorithm.

The suit, originally filed in California federal court in December, alleges the companies directed Facebook Inc. to show job ads only to younger workers, in violation of various state age-discrimination laws. Tuesday’s amended complaint adds nationwide collective claims under the federal Age Discrimination in Employment Act, claims that the U.S. Equal Employment Opportunity Commission had yet to approve in December, according to the earlier complaint. ADEA plaintiffs must get right-to-sue letters from the EEOC before filing claims under the statute.

The new complaint also includes allegations that the algorithm Facebook uses to decide who sees its ads excludes even more older workers than the companies ask Facebook to. This algorithm analyzes the employer’s selected audience and further restricts who sees the ad, sending “a disproportionate number of job ads … to younger workers instead of older workers,” according to Tuesday's complaint.

“When Facebook’s own algorithm disproportionately directs ads to younger workers at the exclusion of older workers, Facebook and the advertisers … are engaging in disparate treatment,” the CWA says. Facebook is not named as a defendant in the suit, however.

The CWA alleges that companies, at Facebook's prompting, are limiting the audience that sees their want ads to people under the age of 40 — the age at which bias protections kick in — or are setting other upper-end age limitations that would stop older workers from ever even seeing the recruitment advertisements.

The lawsuit is styled as a class action on both sides: the CWA seeks to represent classes of older job seekers, and the companies are lumped into a defendant class that includes four named defendants but will ensnare hundreds more. The new complaint outlines state-law classes and an opt-in collective under the ADEA. 

The suit names as defendants only T-Mobile US Inc., Amazon.com Inc., Cox Communications Inc. and Cox Media Group LLC but identifies several other companies that allegedly have paid Facebook to run ads excluding workers protected by age discrimination laws. These companies include Ikea and Enterprise Rent-A-Car, which were identified for the first time in Tuesday’s complaint.

The CWA and legal counsel Outten & Golden LLP said in a press release Tuesday that the EEOC has “opened a federal investigation against dozens of companies” in response to age-discrimination charges the union filed with the agency against 38 employers and employment agencies.

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But this violates the ban on publishing job ads with a “limitation … based on age” in the ADEA, the CWA’s lead attorney, Outten’s Peter Romer-Friedman, told Law360 on Tuesday.

“The internet doesn’t create an exemption from the age bias laws,” Romer-Friedman said. “You can’t publish ads that indicate a preference … all the ads say the companies want to reach people between one age and another age.”

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The workers are represented by Jahan C. Sagafi, P. David Lopez, Peter Romer-Friedman, Adam T. Klein, Robert N. Fisher and Jared W. Goldman of Outten & Golden LLP, and Patricia Shea and Katherine A. Roe of the Communications Workers of America.

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The case is Communications Workers of America et al. v. T-Mobile US Inc. et al., case number 5:17-cv-07232, in the U.S. District Court for the Northern District of California.

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