Seyfarth Synopsis: While targeted social media ads may help employers find potential applicants with specific skill sets, inartfully crafted ads may open the door to discrimination claims, particularly in California.
We've already told you about the parade of horribles employers may face when using social media when making hiring decisions.
Well, more social media, more problems.
Micro-Targeting May Open The Door To Discrimination Claims
What is micro-targeting, you ask? Remember when you looked up discount flights to Hawaii, and then for the next three weeks, all of your feeds taunted you with ads for more flights, hotels, surf lessons in Kauai and hula skirts? Well, it's kind of like that.
Social media platforms collect virtually endless volumes of personal data. This practice enables increasingly intricate advertising algorithms to push out content to very specific demographics. Suppose your business wants to advertise to the select group of people who have expressed an interest in the Montessori method, or who juggle, or who space travel and live in three specific zip codes. Micro-targeting was made for you.
Micro-targeting has expanded into the employment context, with some potentially problematic implications. One class action pending in California federal court alleges that Facebook ads targeted to people within certain age ranges are discriminatory. Similar claims could crop up in seemingly innocuous situations if, for example, an employer targeted ads to fellow graduates of his alma mater, which happened to be an all-male prep school.
As a result, employers who recruit via social media should proceed with caution if their ads in any way target (or exclude) persons in a legally protected category.
Particular Risks for California Employers
Federal law prohibits discrimination based on race, color, national origin, sex, disability, age, citizenship status, and genetic information. Of course, California is a bit different. California extends its protections to prevent discrimination because of additional characteristics, including ancestry, marital status, sexual orientation, gender identity and expression, medical condition, political activities or affiliations, and military or veteran status. As a result, for example, an ad geared towards trying to recruit politically liberal or conservative candidates may raise peculiar legal issues in California.
Employers need to understand their recruitment practices, and decide whether micro-targeting can ever be the right approach for them. When employers decide to use targeted ads, they should do so with relevant employment laws in mind and take steps to minimize potential exposure. Because HR managers or marketing departments may not be aware of the additional sensitivities that arise when advertising in the employment context (particularly in California), additional training on this subject may be helpful.
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.