After working at a call center for two decades, Linda Bradley’s job came to an end about a year and a half ago. Since her layoff, she has combed online job sites every day looking for work — without much luck.
Bradley, who is 45 and lives near Columbus, Ohio, began suspecting age discrimination after someone at her union mentioned how recruiters often target online ads at younger candidates. “I thought to myself, ‘Oh, that’s why I wasn’t seeing some of the ads that my daughter has seen on her Facebook,’ ” she says.
Her daughter, who is 26, found something right away. Bradley eventually took the only job she could land — making far less than she had in her previous job. Her job hunt continues, but she says feels she is being excluded from even finding out about opportunities.
“It’s a struggle taking care of four children [and] not being able to have the same opportunities as everybody else,” Bradley says, crying.
When an employer sets out to recruit young people for a certain job, is it discriminating against older job seekers in a way that breaks the law? That question is at the center of several pending lawsuits that could help improve job opportunities for older Americans.
Bradley is a plaintiff in one such case brought in December against T-Mobile, Facebook and a host of other companies. The lawsuit, filed by the Communications Workers of America on behalf of Bradley and other workers in the same situation, alleges the companies discriminate by excluding older workers from seeing their ads.
T-Mobile didn’t respond to requests seeking comment on the case. Facebook also declined. But in a December blog post, Facebook’s vice president of ads, Rob Goldman defended the practice. He argued that tailoring ads is not illegal, as long as the recruitment campaign overall is designed to reach all demographic groups.
But Bradley says that is not what she has observed. “If I would’ve saw ads for employment, I definitely would’ve noticed them because I’m looking for employment,” she says.
Workplace civil rights law prohibits discrimination against workers 40 and older. Yet worker advocates say recruiters sometimes exclude older workers by narrowing how and where they look for candidates. In addition to Bradley’s suit, another recent case has challenged whether an employer can recruit exclusively on college campuses. Another is challenging whether it’s legal to cap the number of years of experience an applicant can have.
“We see that this is one of the factors that keeps older workers out of the job market after a job loss,” says Jody Calemine, chief of staff with the Communications Workers of America.
Last month, in response to an investigation by the Washington state attorney general into the matter, Facebook signed a legally binding agreement, pledging to stop allowing advertisers to exclude people based on race, nationality or sexual orientation. But, Calemine notes, that did not prohibit exclusions based on gender and age.
“The agreement shows that they could fix the age discrimination issue very quickly, but they are resisting and that is very perplexing,” he says.
Facebook allows users to click on a feature to see why they’re seeing certain ads. Calemine says those disclosures are explicit about their target audience.
“My jaw dropped as I saw some of the ads we were able to uncover,” he says, citing one T-Mobile recruitment ad aimed at 18- to 38-year-olds.
Calemine says targeted advertising — the profit engine for Facebook and many other sites — is a new frontier for discrimination.
“Their business relies on this microtargeting; the problem is microtargeting can be discrimination,” he says. “Civil rights don’t stop when you turn on your computer.”
But the cases brought by the Communications Workers and others face an uphill legal battle.
“Hiring discrimination is very difficult to prove, because the applicant is on the outside looking in,” says Laurie McCann, a senior attorney for the AARP Foundation, a nonprofit fighting poverty among seniors.
In these types of cases, the applicants aren’t claiming the employer discriminated against them personally. Rather, McCann says, they’re arguing the recruiting process itself has a discriminatory effect. In other words, by targeting recruitment at younger people, employers end up excluding older job seekers. Whether that’s a violation of law is the question.
“The issue is whether or not workers can even get into the courthouse door to challenge that practice that clearly screens out older workers,” McCann says.
That’s the legal hurdle Dale Kleber must clear. Kleber is a lawyer and former executive at a Fortune 500 company who lives just outside Chicago. Three years ago, he applied for a legal job with CareFusion, a medical-technology firm. The posting specified that CareFusion was looking for candidates with three to seven years of experience, but no more than seven. Kleber applied anyway, was rejected. He then sued.
“I thought that was blatantly discriminatory. Most [lawyers] who are 40 years or older have been a lawyer for more than seven years,” he says.
In April, a three-judge panel on the 7th U.S. Circuit Court of Appeals overturned a lower court and ruled in Kleber’s favor, saying the law protects applicants like Kleber.
But that case remains in limbo. CareFusion, which is now owned by Becton Dickinson, is appealing the decision. In a statement, Becton Dickinson denies its policies discriminate. But Kleber takes issue with the company’s defense.
“The response that the company gave was, ‘Well, Mr. Kleber was overqualified,’ and frankly, I think that’s code word really for age discrimination,” he says.
The case will be heard by the full 7th Circuit appeals court in September.
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