Facebook Agrees to Sweeping Reforms to Curb Discriminatory Ad Targeting Practices

NEW YORK — A historic civil rights settlement was announced with Facebook today following a variety of anti-discrimination legal actions. The settlement encompasses sweeping changes that the tech giant will make to its paid advertising platform to prevent discrimination in employment, housing, and credit advertising.

Since late 2016, Facebook has faced legal pressure from the American Civil Liberties Union, Outten & Golden LLP, the Communications Workers of America, job seekers and consumers, and fair housing and civil rights organizations. These cases collectively challenged Facebook’s paid ad platform, alleging that it enabled advertisers to exclude Facebook users from receiving job, housing, or credit ads based on race, sex, age, or other protected classes, in violation of federal and state civil rights laws. Under the settlement, Facebook will take proactive steps to prevent advertisers from engaging in unlawful discrimination when sending job, housing, or credit ads to users of Facebook, Instagram, and Messenger.

“As the internet — and platforms like Facebook — play an increasing role in connecting us all to information related to economic opportunities, it’s crucial that micro-targeting not be used to exclude groups that already face discrimination,” said Galen Sherwin, senior staff attorney at the ACLU. “We are pleased Facebook has agreed to take meaningful steps to ensure that discriminatory advertising practices are not given new life in the digital era, and we expect other tech companies to follow Facebook’s lead.”

Among the many reforms that apply to job, housing, and credit advertisements included in the settlement, Facebook has agreed it will:

• Create a separate portal for such ads with a much more limited set of targeting options so that advertisers cannot target ads based on Facebook users’ age, gender, race, or categories that are associated with membership in protected groups, or based on zip code or a geographic area that is less than a 15-mile radius, and cannot consider users’ age, gender, or zip code when creating “Lookalike” audiences for advertisers
• Implement a system of automated and human review to catch advertisements that aren’t correctly self-certified as these types of ads
• Require all advertisers creating such ads to certify compliance with anti-discrimination laws, and provide education for advertisers on those laws
• Study the potential for unintended biases in algorithmic modeling on Facebook
• Meet with plaintiffs and their counsel every six months for three years to enable them to monitor the implementation of the reforms that Facebook is undertaking.

Details of the settlement can be found here.

The settlement was reached after more than 18 months of settlement negotiations and years of lawsuits and complaints that alleged discriminatory practices on Facebook’s ad platform.

“Our campaign seeks justice for workers who have been unfairly locked out of opportunities by employers who deny their ads to older workers or women,” said Sara Steffens, secretary-treasurer of CWA. “All workers deserve a fair chance to get a good job.”

“Equal rights must be the guiding principle for online advertising and recruiting,” said Peter Romer-Friedman, a civil rights attorney at Outten & Golden LLP. “This settlement takes away digital tools that advertisers can use to deny equal opportunity. We will continue our efforts to hold employers accountable for using Facebook’s platform to discriminate.”

In September 2018, the ACLU and Outten & Golden, representing the Communications Workers of America and several individual job seekers, filed charges with the Equal Employment Opportunity Commission against Facebook and a number of employers, alleging that they had unlawfully discriminated based on gender and age by targeting job ads on Facebook to younger, male Facebook users and excluding older people, women, and non-binary users from receiving the job ads (Spees/CWA v. Facebook). A similar EEOC charge was filed against Facebook in January 2018 by CWA and individual job seekers, also represented by Outten & Golden, for enabling employers to post job ads that excluded older workers (CWA/Bradley v. Facebook).

As a part of the settlement, CWA and the workers will withdraw their EEOC charges against Facebook based on age and gender. However, the settlements do not resolve pending EEOC charges that CWA and workers have filed against more than 70 employers who used Facebook’s ad platform to exclude older workers or women (or both) from receiving their job ads. Nor do the settlements resolve a massive class action lawsuit that CWA and individual workers filed in federal court in December 2017 against a proposed class of hundreds of large employers who used Facebook’s ad platform to exclude older workers from receiving their job ads, including T-Mobile and Amazon.com (CWA v. T-Mobile et al.).

The settlement also resolves a November 2016 lawsuit challenging race and national origin discrimination in ads for jobs, housing, and credit on Facebook (Mobley v. Facebook), and a March 2018 lawsuit filed by the National Fair Housing Alliance and regional housing groups challenging landlords’ use of Facebook to send housing ads that exclude families with children, women, and other protected groups. The Mobley plaintiffs are represented by Outten & Golden, Aqua Terra Aeris Law Group, and the Law Office of William Most.

In addition to the significant changes Facebook has agreed to make to its paid advertising platform, the company has agreed to pay a monetary award to CWA to reimburse it for its legal fees and costs and to the individual job seekers and consumers who allege that they were denied opportunities by discrimination on Facebook’s ad platform. The award will also cover fees for years of legal work since 2016 and during the implementation and monitoring period that will extend through 2022. Between the Spees/CWA, CWA/Bradley, and Mobley cases, the total payments are nearly $3 million.