Court Grants Leave to Amend Job Ad Discrimination Suit

Judge Beth Labson Freeman of the Northern District of California issued an order granting a motion to dismiss the fourth amended complaint in a case alleging “employment discrimination in ‘the Cyber Age,’” carried out through the use of targeted employment ads on social media.  Plaintiff job-seekers are represented by Outten & Golden and the Communication Workers of America.  The court dismissed the complaint but left an opportunity to amend the pleading to properly establish standing. The court also granted the discovery request to establish jurisdiction.

Defendants T-Mobile, Amazon, and Cox moved to dismiss the complaint, alleging the complaint lacked Article III standing and personal jurisdiction and did not to state a claim for relief. The judge ruled that the “4AC does not currently contain the allegations necessary to establish standing or personal jurisdiction, but that Plaintiffs have adequately justified their narrow request for jurisdictional discovery.”

The plaintiffs alleged that companies, such as Facebook, have harvested large amounts of data about people from their social media and online activity and use this information to curate “targeted ads,” which are personalized to each user. The plaintiffs argued, “this kind of targeting can also be used in insidious ways – namely, to deny access to information to certain groups of people and thereby advance discriminatory aims.” They alleged that T-Mobile and Amazon “routinely exclude older individuals from viewing the employment ads they post on Facebook.” Advertisers can target ads based on “age, gender, location, interests, and behaviours.”

The plaintiffs alleged that these filters were used to favor young workers by creating a “ceiling on the age of people who will receive their job advertisements.” These employment opportunity ads direct the user to the company’s career page, which allows a potential job applicant to look at “all available positions for which she or he could apply and encourages prospective employees to apply for such positions.” Ad viewers can click to find out why they were shown an advertisement; T-Mobile’s ad was geared towards people ages 18-38 and Amazon’s ad was geared towards people ages 18 to 54. The plaintiffs alleged that the defendants’ use of ad targeting has violated the Age Discrimination in Employment Act (ADEA), which makes it illegal for an employer to target or discriminate based on age for any notice or advertisement or for refusing to hire or otherwise discriminate based on age.

In its order, the court noted that the plaintiffs have Article III standing for “the denial of Plaintiffs’ opportunity to apply for jobs, though not in the denial of the jobs themselves.” The court points out that while the plaintiffs claim injury, they “did not seek employment information” from T-Mobile or Amazon. The court also agreed with the defendants that the plaintiffs’ claim of lost wages is invalid because they would not necessarily have received the job even if the alleged discrimination had not taken place; the court wrote that Plaintiffs “have not adequately alleged that they personally have experienced such injuries.”