Discrimination in Online Employment Recruiting

Abstract

Employment recruitment is increasingly moving online as employers use Facebook and other social media platforms to advertise job opportunities. This shift to online advertising allows employers to more precisely target workers likely to apply, but also raises concerns about unfair exclusion. This essay explains the mechanisms though which online recruiting can produce discriminatory effects and examines the question of when employers will be liable under existing employment discrimination laws. Both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act contain little-noticed provisions that specifically forbid discriminatory advertising, in addition to their general prohibitions on taking adverse employment actions because of a protected characteristic. We examine whether or how these provisions might apply to online targeting advertising and also whether employers’ recruiting practices might support claims of disparate treatment or disparate impact discrimination. We conclude that ample room exists within existing doctrine to address the most egregious practices; however, it is less certain whether current law is adequate to reach all forms of targeting recruitment with significant discriminatory effects.

Keywords: employment discrimination; social media; online advertising; recruitment; Title VII; ADEA