Facebook is accused of violating federal law by enabling its third-party clients to target their help wanted ads by gender. With its rich data platforms, Facebook’s business model allows advertisers to customize their paid ads with high levels of specificity and sophistication, including controlling who can view it. In 2017, several employers were sued for age discrimination against older workers for creating ads that targeted younger employees, in some cases, employing a specific age cut off that Facebook helped implement.
On September 18, 2018, the American Civil Liberties Union (“ACLU”) filed a complaint with the Equal Employment Opportunity Commission against both Facebook and ten of its client employers, alleging that those employers used Facebook to advertise certain positions to men only. It did so on behalf of three female job applicants and the Communications Workers of America Union, alleging that these targeted advertisements effectively exclude women and gender non-binary job seekers by ensuring that they will never see certain job listings. According to the plaintiffs’ lawyers, the gender targeting ads were discovered through a disclosure feature on Facebook that specifies why that individual user receives a particular ad. For example, an ad disclosure for Nebraska Furniture Mart of Texas, one of the employers involved, revealed that it targeted male applicants between the ages of 18 and 50 that lived in the area for assembly and furniture delivery preparation jobs.
Is targeting a particular group the same as discriminating against the non-targeted group? The controlling precedent, according to the ACLU, is the 1973 Supreme Court Case, Pittsburgh Press, which found a Pittsburgh newspaper in violation of a city ordinance against sex-discrimination in the workplace when it published separate employment ad sections based on gender. The decision relied heavily on Title VII of the Civil Rights Act which explicitly prohibits employers from using advertisements to exclude groups of people on the basis of gender, race, national origin, religion, age, military status, disability, and sexual orientation. The ACLU maintains that the facts of Pittsburgh Press are similar enough to merit a ruling in their favor because Facebook’s targeted advertising functions to exclude, which constitutes discrimination. A key difference is that Facebook users will never know that they are not receiving an ad, unlike targeted newspaper advertisements which everyone can read. However, that is unlikely to impact an analysis of whether gender discrimination occurred and is more likely a reflection of changes in employee recruitment in the age of technology.
The New York Times reached out to several of the employers for comment and although a few regretted using a targeted approach, some responded that Facebook ads constitute only a small part of their larger recruitment strategy and that their recruitment strategy does not violate Title VII. This could indicate resistance and an unwillingness to abandon targeted advertisements until an official court ruling. Another legal question involves whether Facebook’s role in promoting and facilitating gender-based job advertisements makes it an employment agency or a third-party platform. According to Pauline Kim, a professor of employment law at Washington University in Saint Louis, classifying Facebook’s role hinges on unpacking the way it uses algorithms. There are many factors at play, but a federal ruling on this type of targeted recruitment through the use of technology platforms has the potential to redefine the way Americans secure employment.
 See, Braden Campbell, Facebook Hit with Gender Bias Claims Over Targeted Job Ads, Law 360 (Sept. 18, 2018, 9:02 AM), https://www.law360.com/employment/articles/1083566/facebook-hit-with-gender-bias-claims-over-targeted-job-ads.
 See, Elizabeth Dwoskin, Men (only) at Work: Job Ads for Construction Workers and Truck Drivers on Facebook Discriminate on Gender, ACLU Alleges, Wash. Post (Sept. 18, 2018), https://www.washingtonpost.com/technology/2018/09/18/employers-are-using-facebook-target-job-ads-police-officers-truck-drivers-sports-store-clerks-exclusively-men/?utm_term=.e95599bcb80f.
 Sharon Bernstein, Facebook ads that let employers target younger workers focus of U.S. lawsuit, Reuters (Dec. 20 2017), https://www.reuters.com/article/us-facebook-lawsuit-discrimination/facebook-ads-that-let-employers-target-younger-workers-focus-of-u-s-lawsuit-idUSKBN1EF09B.
 Sasha Ingber, Facebook Allowed Employers to Exclude Women from Job Ads, ACLU Says, NPR (Sept. 18, 2018), https://www.npr.org/2018/09/18/649158898/facebook-allowed-employers-to-exclude-women-from-job-ads-aclu-says.
 See generally Noam Scheiber, Facebook Accused of Allowing Bias Against Women in Job Ads, N.Y. Times (Sept. 18, 2018), https://www.nytimes.com/2018/09/18/business/economy/facebook-job-ads.html. (Explaining the potential consequences of targeted advertisements on protected groups.)
 Campbell, supra note 1.
 Dwoskin, supra note 2; See also, Civil Rights Act, 42 U.S.C. § 2000e-2 (1964).
 Campbell, supra note 1; Pittsburgh Press Co. v. Pittsburgh Com. On Hum. Rel., 413 U.S. 376 (1973).
 Bernstein, supra note 3.
 See generally, Braden Campbell, Facebook Hit with Gender Bias Claims Over Targeted Job Ads, Law 360 (Sept. 18, 2018, 9:02 AM), https://www.law360.com/employment/articles/1083566/facebook-hit-with-gender-bias-claims-over-targeted-job-ads.
 Scheiber, supra note 5.