Facebook has become a social media goliath. Of the world’s 7.5 billion people, it’s estimated that about 2.1 billion of them are members and another billion people use Facebook daily. Last year Facebook’s revenues were $40.7 billion. With this much reach, Facebook would seem like a great spot to place a help wanted ad.

It’s not just the quantity of people who may see a job posting, it’s the quality. Facebook knows so much about its customers, it can slice and dice demographics to provide advertisers a very select audience. Let’s say you only wanted to hire someone younger than thirty who lives in the Princeton area. Facebook can advertise to users that it believes are in that group.

The downside to this targeting is that it’s illegal to discriminate against those who are forty and older in hiring under federal law. Those only seeking youthful employees need not dirty their hands with screening out candidates they’re not interested in hiring. Facebook can do it for them, according to a recent article in the New York Times. Under the federal Age Discrimination in Employment Act (ADEA), those older than forty are protected against age discrimination in hiring, and New Jersey law protects them as well.

An article-cited example involved a job posting by Verizon for financial planning and analysis. It was targeted to the Washington, DC, area, and to users 25 to 36 years old. Verizon is just one of dozens of the country’s leading employers.  Others include Amazon, Goldman Sachs, and Target.  Facebook permitted them to create recruitment ads directed at specific age groups.

You may recall that Facebook gained notoriety this year as the advertiser of choice for Russians seeking to influence the 2016 elections — because of its unique ability to target ads to specific groups that unlawfully discriminate by race, gender, religion, disability, and other factors. The Times and ProPublica, which also worked on the article, found that employers could also buy ads on Google and LinkedIn that excluded those older than forty. According to the article, after ProPublica contacted LinkedIn for a comment, it changed its system to prevent such targeting.

A database of Facebook ads collected by ProPublica shows that ads for “part-time package handlers” by United Parcel Service were aimed at those 18 to 24 and State Farm sought job applicants from Facebook users aged 19 to 35. Some of these companies defend the practice as but one piece of their recruitment strategy which shows job opportunities to those of all ages, like putting ads in an AARP magazine plus Teen Vogue. Though both publications primarily have readers of specific age groups, people of any age can read them. That’s not true of targeted Facebook ads.

Being able to provide advertisers to reach very precise audiences is a major reason why Facebook is so successful. But if a job is advertised this way, it is highly likely someone forty or older not only won’t get hired, but also few if any older workers will see the ad and apply. Facebook might not just be seen as simply a means to advertise jobs, it may be in violation of federal and state laws by aiding and abetting employers’ acts of age discrimination.

To aid and abet is to act as an accomplice. The New Jersey Supreme Court found in 1973 that if a newspaper ran a gender-specific help “wanted ad”, it would aid and abet unlawful sex discrimination.

Facebook defends its practices, claiming what it’s doing is “an accepted industry practice” that somehow helps recruit applicants of all ages. It also claims that under the federal Communications Decency Act (CDA), it can run all the discriminatory ads it wants.

The federal ADEA states liability can only attach to employers or employment agencies, like recruiters and advertising firms, so Facebook may not fall under that federal law. Many state laws, like New Jersey’s, are much more open to targeting any party who aids and abets discrimination, like a newspaper running a discriminatory ad.

Part of the federal CDA protects internet companies from liability for third-party content. The law has successfully been used to avoid liability for offensive or criminal content — including sex trafficking, revenge porn, and calls for violence against Jews. Facebook is arguing in federal court that the CDA prevents it from being liable for ad placement that blocks members of certain racial and ethnic groups from seeing the ads. Although Facebook may avoid liability if a job posting explicitly states only those of a given age should apply, the issue is Facebook’s targeting of specific audiences, not the content of the ads.

If you believe you’ve been denied a job opportunity because of your age, whether due to how the opening was advertised or for some other reason, age discrimination is illegal under federal and New Jersey laws. If a prospective employer broke the law and you want to know what your options are, contact our office. We can talk about your situation, how the law may apply, and what you can do to protect your legal rights and interests.  Call us today.  You will be glad you did.