‘Discriminatory intention is not what matters — it’s all about the effect’: Lawyer
Recruitment options offered by Facebook could face legal action following accusations of age and gender discrimination.
In April, a Montreal law firm filed an application for a class-action lawsuit against Facebook and Facebook Canada, alleging the companies have allowed for discrimination by excluding specific people from employment and housing advertisements. The application also alleges the Menlo Park, Calif.-based social media company’s algorithm framework has a discriminatory effect on the delivery of ads to users.
By allowing and facilitating such practices, Facebook has violated rights guaranteed in the Quebec Charter of Human Rights and Freedoms — and similar laws across the country, according to Audrey Boctor, partner at IMK Avocats.
The plaintiff is 65-year-old Lyse Beaulieu, but the proposed lawsuit could eventually include many more Canadians, said Boctor.
“Facebook has 20 million users in Canada, so this definitely — being conservative — impacts (people) in the hundreds of thousands.”
Beaulieu is an active Facebook user who has been job hunting for years, even as some employers have capped job ads at age 55, said Boctor.
“It’s already difficult to find a job at that stage,” she said. “When you’re just simply not even getting access to the same types of advertisements for employment that younger workers are, it creates an additional burden and it’s discriminatory.”
“You couldn’t run an ad that says, ‘People over 55 need not apply.’ This is essentially the modern-day version of that, where you’re simply excluding those people from even having access to the ad.”
In April, federal Employment Minister Patty Hajdu called on the Canadian Human Rights Commission to examine employers’ usage of Facebook recruitment strategies, specifically in terms of targeting job ads to specific age ranges.
“From my perspective, it’s behaviour that is breaking the law,” she said, following a CBC investigation that found about 100 employers had posted job ads targeting specific ages or genders.
Facebook will cease the usage of microtargeted job ads in the United States by year’s end, and is examining extending these requirements globally, according to a Facebook spokesperson.
“There is no place for discrimination on Facebook. It’s strictly prohibited in our policies... Over the past year, we’ve strengthened our systems to further protect against misuse.”
Targeting or discrimination?
Facebook recruitment options allow employers to limit ages, gender and choice of university to target specific recruits. And it’s appropriate in some circumstances, according to Shahid Wazed, founder of Top Talent Summit in Edmonton.
If an employer is adamant a new recruit has five years’ experience in the field, it could target people age 25 and up to trim the amount of applications and lower costs, he said.
“That is not discrimination based on who we’re trying to hire... That’s where the fine line is.”
But when a hiring manager decides to target specific recruits without justification, that is discrimination, said Wazed.
“It’s about ‘Is it really legit? Is (targeting) tied to the job posting, the actual core job?’ Because if it’s not transparent on the job posting, that’s where we get into this grey area,” he said.
While targeted ads may have historically flown under the radar, the rise in online recruitment has inadvertently aggregated recruitment data and opened it up to potential examination, according to Amanda Boyce, associate at Stringer law firm in Toronto.
“When they do it on Facebook or on another platform and they click a box that says, ‘Show this to 20-year-olds only’… it draws more attention to the strategy,” she said. “The data is aggregated in one place — be that Facebook or another platform — and it’s examinable in a way that it previously probably wouldn’t have been.”
Employers that use Facebook’s targeted recruitment tactics need to have explicit reasoning for doing so, said Boyce.
Broad recruitment strategies could strengthen an employer’s case while simultaneously lessening the possibility of discrimination allegations, she said.
Even targeted job ads created with the best of intentions could be discriminatory, said Boyce.
“Discriminatory intention is not what matters — it’s all about effect,” she said.
‘Proper use’ of targeting
The reaction to Facebook’s job targeting tools is “a big deal” because employers’ usage of this platform is relatively new, according to Sarah Molyneaux, employment and human rights lawyer at Molyneaux Law in Hamilton, Ont.
“I’m not surprised that it’s happening,” she said. “But I am surprised to see certain government employers among the list of people that are targeting their ads in this way.”
“There is proper use of targeting — like youth employment programs, affirmative action programs, hiring where gender is a relevant consideration,” said Molyneaux.
“Placing an ad on a church bulletin board or in a magazine that targets a specific cultural group has been going on for a long time and I don’t think there’s anything improper with that,” she said. “Anyone can pick up an ad that was posted on a bulletin board in a church; anyone might open a magazine targeted at a cultural group they don’t belong to.”
The same is not possible with Facebook, said Molyneaux.
“We don’t use other people’s Facebook (accounts) by accident very often, so the chances of someone that’s not targeted seeing one of these ads becomes really miniscule, unless the ads are also being posted to other mediums,” she said. “That’s one reason why large employers often already have a job posting policy in place designed to get a broad swath of candidates applying.”
Public employers will advertise in a certain number of nationally distributed publications or websites to avoid discrimination, nepotism or bad hiring practices, said Molyneaux.
The same isn’t true for private employers, however.
“Unfortunately, we still see blatant discrimination in job ads constantly in Canada,” she said.
“If you were to go on Craigslist job ads today, for example, you would probably see a lot of job ads that cross the line — people looking for a man to do heavy lifting, a woman for child care, a waitress that has certain physical attributes.”
Tips for employers
Evidence of discrimination comes when potential recruits are denied an interview opportunity and then find out targeted job ads were used, said Molyneaux.
“That’s what employers have to be careful of,” she said. “Look at the whole picture of your recruitment practices and ask yourself ‘Is this something that is discriminatory or potentially discriminatory?’”
“Using a targeted ad won’t always be wrong. But if that’s all you’re using, you may be treading on very dangerous territory.”
Avoiding discrimination in recruitment practices is everyone’s responsibility, according to Wazed.
“With every technology tool, there’s pros and cons,” he said. “It’s just like a knife — you can use it to chop up your vegetables and cook a nice meal and, also, you can use the same knife to do harm.”
“It really all comes down to the person who’s running the ad. The person needs to be just cognizant (that) if they don’t use it properly, then it may kind of go into that grey area of age discrimination and all that.”
Employers considering Facebook for recruitment should first seek legal advice and conduct a review of recruitment policy, said Molyneaux.
Responsibility ultimately falls with the employer, and proper policy and advance discussion on appropriate ways to use social media can reduce mistakes and unnecessary costs, she said.
“Facebook could improve the platform to make this harder to do, but the duty not to discriminate in employment is a duty that the employer has, so they need to be careful about what boxes they’re ticking,” said Molyneaux.
“If you’re solely posting on Facebook, and you’re doing so in a way that is highly targeted on protected grounds, you’re going to run into trouble, unless an exception to the general rules of non-discrimination applies to you, unless there’s a really good reason for your discrimination on the basis of those factors.”
Those who recruit through LinkedIn could also face potential charges of discrimination if an employer can view a photograph, ethnicity, age or gender — information a recruiter typically cannot ask for, she said.
And while a total ban on targeted job ads is not expected, human rights tribunals will likely continue to investigate on a case-by-case basis, said Molyneaux.
“Employers who think that this is a black box they can put whatever they want into are wrong — employees can very easily find out why they’re being targeted,” she said.
“If you have anything to be embarrassed about, it’s time to rethink your strategy, because as the public becomes more aware of the practice and of the tools they can use to find out why they’re being targeted, employers are going to be facing some difficult questions.”
While many employers have a business presence on Facebook, the extent of their usage typically ends at branding, said Wazed.
The vast majority of job ads on Facebook are the product of recruitment agencies, he said.
“You need to have some sort of training to run Facebook ads,” said Wazed. “It’s not like a), b), c), you just open the system and you run ads.”
Still, the social media platform remains a quality recruitment option, and employers should not be afraid to use it, he said.
“You can hire a lot of folks on Facebook — good quality people. You have to strike a balance.”
Why am I seeing this ad?
Facebook’s help centre explains how the company decides which ads to show individual users. Examples include:
• Facebook activity (liking a page or post, or clicking on ads you see)
• other information gleaned from an account (age, gender, location, devices used)
• personal information shared by advertisers (email address)
• activity on websites and apps outside of Facebook (this function can be turned off)
To see why Facebook is showing you an ad:
• Click on the three dots in the top right corner of the ad.
• Click ‘Why am I seeing this ad?’ (there are different reasons, such as the person visiting a website by the advertiser)
• If available, click > next to the reason to view more information.