Now You See It, Now you Don’t - Targeted Advertising and Employment Discrimination

By Harry Wall
19 February, 2018

Background

A new development in online recruiting – targeted job advertisements – gives rise to concerns in relation to employment equality law. By way of example, a U.S. telecommunications company recently placed an advertisement on Facebook to recruit candidates for a financial planning role. So far so good. Except that the promotion was set to appear only on the Facebook feeds of users aged 25 to 36 years old, who lived in, or had recently visited, Washington D.C. and who had demonstrated an interest in finance. For a vast majority of the hundreds of millions of people who check Facebook every day, the ad did not exist.

Other notable employers, including Facebook itself, have placed similar ads limited to particular age groups. Facebook has come out in defence of the practice stating that age based targeting for employment purposes is an accepted industry practice that helps employers recruit, and helps people of all ages find work.

So why is this an issue?

In Ireland, the Employment Equality Act 1998 to 2015 (the “Equality Acts”) prohibit discrimination in employment based on any of nine protected characteristics. Those characteristics include race, religious belief, civil and family status, disability, gender, sexual orientation, membership of the travelling community and – importantly in this instance – age. Discrimination is defined as treating a person less favourably than another person is, has been or would be treated in a comparable situation on one or more of the protected characteristics.

It is important to note that the scope of the protections offered by the Equality Acts extend to the entirety of the employment relationship, including the recruitment process. So when Ryanair advertised for “a young and dynamic professional” to fill a particular role some years ago for example, this was held to be discriminatory on the grounds of age. The then Equality Tribunal deemed that middle aged or older individuals were excluded from qualification for the position and that this amounted to discrimination.

The circumstances are slightly different in this scenario, given that rather than soliciting a particular age group in the text of an advertisement, micro-targeting is applied to limit the population receiving or seeing the advertisement itself. Actively opting to make a job advertisement not visible to persons outside a particular age range arguably shows clear intent to discriminate on the part of a prospective employer. Both a prospective employer and an advertiser/recruitment agency could potentially fall foul of the Equality Acts if insufficient care is taken to consider the manner in which a job is advertised online.

Take-Aways

It is always advisable at the outset to have a clear and defined recruitment strategy in place when advertising for roles. Where using online platforms to advertise, take care to avoid targeting applicants on the basis of any of the protected characteristics set out above, either on the face of the ad itself or by limiting the population receiving the ad, unless the particular protected characteristic(s) are a real requirement of the job that is proportionate to achieve a specific aim. Equally, when engaging a recruitment agency which in turn has a presence on such platforms, ensure that the agency does not similarly target the ads in a discriminatory manner.

For more information on the content of this Insight, please contact a member of our Employment team.