Is employer branding discriminatory?

Excluding certain age groups from seeing social media such as LinkedIn or Facebook ads likely amounts to discrimination
By Brian Kreissl
|Canadian HR Reporter|Last Updated: 09/26/2018

A few weeks back, I was talking to one of our authors about employer branding when the issue of employers targeting certain demographics for employment came up. The question was whether such targeting could amount to discrimination under human rights legislation.

Organizations obviously have specific target markets for their products and services, so why not target specific demographics for employment, particularly in certain types of positions? After all, there is no question some organizations tend to hire people in specific age groups and certain life stages.

For example, McDonald’s tends to hire a lot of young people and seniors to work at its fast-food restaurants. Home Depot also hires a fair number of retirees to work at its stores, and Wal-Mart people greeters have become a cliché regarding the employment of older workers.

The point is that students and retirees often appreciate the flexibility of such positions. I would imagine some parents with young children in school would also appreciate such flexibility and the ability to make their own hours.

I also suspect in the case of Home Depot that experienced and older workers might be deliberately sought after for their wisdom and experience. This might be a little unfair, but in many cases, people would rather ask a retired tradesperson for advice about home renovations than a 20-something student working part-time.

It is also clear that some genders and even ethnic groups tend to be overrepresented in certain industries and occupations. Without stereotyping anyone — and leaving aside issues of discrimination, marginalization and streaming of groups of people into lower status jobs — for whatever reason, some jobs seem to appeal to certain people more than others.

Only a few days after my discussion with our author, I read an article by Hayley Kirton of People Management magazine, published by the U.K.-based Chartered Institute of Personnel and Development (CIPD), discussing two companies being warned by the Equalities and Human Rights Commission (EHRC) not to use tools on Facebook to target specific age groups.

The article also mentions a class-action lawsuit in the United States involving the Communications Workers of America and three workers filed against employers based on their alleged use of Facebook filtering tools to exclude people over a certain age from viewing job advertisements.

The article goes on to explore filtering options using Facebook ads and explains how the magazine attempted to create a fake job ad excluding people of certain demographics or with certain interests, the exclusion of which might be seen as discriminatory.

The tool allowed them to create the ad, but People Management did not actually post it, and the article points out that the website in question has a policy of vetting ads and prohibiting discriminatory content. When reporters went back later, the filtering tools had been removed.

The article also reviews LinkedIn and points out that the professional networking site allows users to target specific age groups with a rough estimate of people’s ages.

LinkedIn’s advertising policy prohibits discriminatory advertising, although the article also points out there could be legitimate reasons for excluding advertisements from people of certain ages, such as advertising for gambling or alcohol.

The article quotes employment lawyer Stefan Martin, who argues employers cannot simply delegate their responsibility to avoid discrimination to social networks when advertising jobs.

He argues this isn’t going to fly and is similar to employers sending advertisements to newspapers expecting them to vet the content and arguing that they thought the newspaper would reject the ad if there was a problem.

Canadian human rights law and practice

So, is this aspect of employer branding potentially discriminatory? Are employers entitled to target certain demographics in their social media advertisements? How would a Canadian human rights tribunal likely rule in such a case?

While I am not a human rights lawyer, I would speculate that a Canadian human rights tribunal would rule on such a case in a similar manner.

I personally think employers should be entitled to appeal to certain demographics in their job advertisements with respect to the messaging (at least to a certain extent), but actually excluding certain people from seeing the ads crosses the line.

Even where employers are aware of their target demographics, they should always be mindful of diversity, use multiple channels to source candidates and avoid rejecting candidates simply because they fall outside those demographics.

 Brian Kreissl is the Toronto-based product development manager for Thomson Reuters Legal Canada’s human resources, OH&S, payroll and records retention products and solutions. He can be reached at brian.kreissl@thomsonreuters.com.

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