Facebook Partners With Companies to Violate Employment Law

I came across this article from the New York Times on Twitter. Since it's from the New York Times, it may be behind a paywall and you may have trouble getting to the actual article (here's another link to the article on ProPublica). However, if you can get to it, it's totally worth a read. As well, I've tried to craft a click-worthy title because I think that this story is really a must see.

The gist of the story is simple. Companies have been running job ads on Facebook that are targeted -- and thus, were only visible -- to a specific age demographic. In other words, if you're not 26-35 years of age, you don't see the ads because the company isn't interested in hiring you.

Facebook defends these ads. They want to make the case that the companies doing this type of advertising also run other programs on other platforms that target the people who aren't 25-36 years old. They think that it's great that companies recruit this way because of... well, whatever they say, it's really about ad revenue for them.

Knowing Silicon Valley, you might expect that we're talking about start-ups here, but not so. These ads are also coming from companies like Verizon, Amazon, and Target. Theoretically, these companies know that they can't put an "only under 50 need apply" in employment ad, so why would they use the age demographic targeting for an employment ad?

• It's easy. They simply need to tick a checkbox and they've focused their employment search on the candidates that they really want.
• It's very difficult for people to complain about something that they never see. Since the ads are only visible to the target demographic, it's unlikely that anyone outside of that demographic would know to complain. 

What I find most telling in this whole story is the difference between Facebook and LinkedIn when it comes to their reaction to ProPublica challenging them on the age-based ad targeting.

Other tech companies also offer employers opportunities to discriminate by age. ProPublica bought job ads on Google and LinkedIn that excluded audiences older than 40 — and the ads were instantly approved. Google said it does not prevent advertisers from displaying ads based on the user’s age. After being contacted by ProPublica, LinkedIn changed its system to prevent such targeting in employment ads.

Contrast that with Facebook's defense of the practice.

Facebook has argued in court filings that the law, the Communications Decency Act, makes it immune from liability for discriminatory ads.

Facebook also claims that since advertisers have to click a checkbox, the ads must be legal.

Facebook helps educate advertisers about the legal requirements they face so that they understand their responsibilities. We've also begun requiring businesses that show employment ads on Facebook to certify that they comply with the law before we show their ads.

While it's hard to say how the courts will ultimately rule on things, it strikes me that the spirit of the protections provided by the Communications Decency Act is about not being held responsible if someone posts something illegal on your platform. It's not designed to protect you from building a platform that sells them access to something that is inherently illegal.

Like the Russian political ads that helped shape the election, Facebook's advertising business seems to lack a moral/legal/ethical compass -- if not to avoid these kinds of issues entirely, at least enough of a sense of direction to get them out of it cleanly (see LinkedIn). It's like the ad revenue end of the business is fully-on Wall-Street-Bro-Culture-dollars-before-all-else, the kind of story you'd expect to hear coming out of Uber.

I actually am more sympathetic to Facebook's enabling of the Russian political ads using fake accounts than I am about this age-based targeting of employment ads story. In the Russian political advertising story, Facebook can fall back on the excuse that their systems were abused and that they were duped. With this, they set the system up to do this.

Of course, once this all plays out, when Facebook issues it's mea culpa and is forced to change it's practices, we all know that nothing will really change with hiring. After all, while Facebook built an advertising platform that enabled these businesses to selectively reach a specific age range, it was the prospective employers that implemented programs (that unexpectedly became public) that exposed decision criteria that have been operating in the background long before Facebook ever ran an employment ad.

This quote in the article from HubSpot spokeswoman, Ellie Botelho, made me laugh.

The use of the targeted age-range selection on the Facebook ad was frankly a mistake on our part given our lack of experience using that platform for job postings and not a feature we will use again.

While I haven't set up a Facebook employment ad, having configured numerous other online ad programs, I can say with some authority -- selectively narrowing the scope of an advertising program down to a specific granular segment isn't something you just accidentally click on. An accident could explain why their ad was also viewed in Europe or by people under the age of 18. An accident would have cost them more money. Selectively targeting an ad so that they only need spend on their actual, intended candidate criteria -- that takes extra effort.

Frankly, I hope that it costs the companies that have participated in this significantly. Perhaps if they'd had somebody from an older age demographic in their employ, that person would have had enough experience to keep them from going down such a stupid path.