Seyfarth Synopsis: Social media algorithms can reach precisely defined audiences, but employers must be mindful to use these powerful tools in an inclusive way when recruiting.
Social media giants like Facebook, Instagram, LinkedIn, and Twitter tout the ability of their advertising algorithms to allow anyone to produce content and push it to a specific audience of people who may be receptive to the message. For consumer goods and services, corporate marketing departments and third-party agencies are adept at defining and targeting the audience with the greatest return on investment.
What happens when those same techniques are applied to recruiting messages? Many employers, large and small, are active on social media platforms. On the surface, it seems like great internal synergy for the HR and recruiting departments to lean on the talents of those in marketing to boost the reach of job ads.
A recent investigation by ProPublica and The New York Times argues that employers may be violating the law when messages are targeted based on certain demographic categories. While the media investigation focused on ads targeted to certain age ranges (and a complaint filed in federal court on the same grounds), the theory would apply equally to micro-targeting that includes or excludes other groups protected under the employment laws, such as sex or racial affinity group. As a result, employers who utilize social media recruiting ads which target a legally protected category such as age or gender, may be at risk for a potential class action discrimination lawsuit comprised of the large number of people who allegedly were precluded from seeing the ad. A plaintiff's counsel may even try to extend this theory to categories common to consumer advertising, such as ZIP code, that have sometimes been treated as proxies for discrimination in employment cases.
What can you do as a business leader to ensure outside departments are in compliance?
The major social media platforms generally try to place responsibility on the advertiser, typically by requiring an acknowledgment that the advertiser has complied with applicable federal and state laws.
As a leader, you should ensure that targeted recruitment ads are placed by those who understand employment laws. In our experience, it is common that the departments that are usually responsible for placing recruitment ads - HR or recruiting - delegate the responsibility when the ads run on social media. Social media managers, marketing departments, or third-party agencies that more often run consumer campaigns may not be aware of the additional sensitivities that must be taken into account in the employment context. Training may be needed, either to help HR or recruiting to effectively use the technology or to help marketing understand equal employment opportunity guidelines.
Auditing for compliance is also key. That includes checking that ads are not targeted in a manner that excludes potential applicants based on age, sex, race, or other protected categories. Employers also should consider tracking and analyzing applicant flow generated by its social media ad campaigns to assess whether there is any adverse impact.
Finally, evaluate the full complement of your recruitment efforts. In the event that a particular ad message or medium is challenged, an employer is better positioned to respond if its overall recruitment efforts are inclusive and encouraging of diverse audiences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
