In a legal decision which may have wide-reaching implications far beyond the U.S,  Facebook is being accused of helping employers exclude female candidates from employment recruiting campaigns on its site.

The Complaint

The American Civil Liberties Union (ACLU) filed a complaint on behalf of job seekers with the federal Equal Employment Opportunity Commission against Facebook and ten employers. The job seekers represented in the claim are a group of women who used Facebook to search for jobs in the past year.

The complaint claims the employers used Facebook’s targeting technology to exclude women from the users who received their advertisements. Essentially, the complaint alleges that the employers utilized the social network’s targeting system to control who saw the specific job advertisements. The women represented in the complaint allege that they were not shown advertisements for what may traditionally be described as male-dominated professions, such as jobs as mechanics, roofers, and security engineers.

While Facebook does not create content itself, lawyers in this case allege that Facebook effectively acts as an employment agency and is therefore liable “because it is an active participant in the recruiting campaign rather than a passive publisher of content like a traditional newspaper with a classified section.”

Facebook’s initial response stated that discrimination was strictly prohibited in all Facebook policies and they would be reviewing the complaint.

The Facebook complaint is interesting because it does not allege that the content of the advertisements is discriminatory against women; rather, it centres on who is able to view the ads and who is not. It is a question of access to content rather than content itself.

Discrimination in Job Advertisements Prohibited: Canada

Though the Facebook complaint was filed under U.S. laws, Canadian legislation also regulates certain aspects of employers’ and employees’ rights and obligations during the pre-employment process.

While not covered by employment legislation, pre-employment discrimination in job postings, job requirements, application forms and interview questions is prohibited under human rights legislation. For instance, the Ontario Human Rights Code prevents discrimination against potential employees on the basis of prohibited grounds.

This means that employers cannot include discriminatory criteria in job postings or advertisements. Furthermore, employers cannot discriminate against prospective candidates in an interview by asking questions relating to these prohibited grounds of discrimination.

In Ontario and most other Canadian jurisdictions, these prohibited grounds of discrimination include the following:

  • age;
  • ancestry, colour and race;
  • citizenship;
  • ethnic origin;
  • place of origin;
  • creed;
  • disability;
  • family status;
  • marital status;
  • gender identity and gender expression;
  • record of offences;
  • sex (including pregnancy and breastfeeding); and
  • sexual orientation.

An employer can escape these prohibitions if it can prove that the requirement is justified as a bona fide occupational requirement or where the employer can show that accommodation is not possible without resulting in undue hardship.

Avoiding Discriminatory Practices in Job Postings and Dissemination of Advertisements

The Ontario Human Rights Commission (“OHRC”) provides guidance on the issues addressed above. Its website sets out best practices to avoid discrimination in the content of job advertisements as well as the issue of discrimination in dissemination and targeting raised by the Facebook complaint.

Job postings: The OHRC recommends that employers ensure that job advertisements and postings “not contain statements, qualifications or references that relate either directly or indirectly” to any prohibited grounds. It also notes that employers be careful to not include a requirement that, while not explicitly a prohibited ground of discrimination, “may unfairly prevent or discourage people from applying for a job” or “include neutral requirements that may be discriminatory barriers.”

Dissemination and targeting: The OHRC recommends advertising job openings widely by using diverse means. It encourages employers to avoid using word-of mouth referrals, personal networks, or social relationships in advertising job postings because “these kinds of informal processes tend to exclude people who do not share the same characteristics and background as the recruiter, and may create discriminatory barriers to employment.” In addition, the OHRC warns that only posting advertisements on the Internet may adversely exclude certain groups of potential applicants. It states that “[t]he best practice is to widely circulate formal job postings, which clearly describe the position and qualifications.”

Contact Petker Campbell Postnikoff for Qualified Advice

Work is a fundamental aspect of most people’s day to day lives. When entering into an employment relationship, it is important to ensure that you are treated fairly and with respect. Whether you are starting a new position, dealing with conflict on the job or facing termination, the employment lawyers at Peter Campbell Postnikoff excel at providing sound and reasonable advice on employment issues. We advise both employees and employers on a wide range of workplace issues. Call us at 519-886-1204 or contact us online to discuss your employment law concerns and obtain reasonable and practical advice.