Labor & Employment Law Daily T-Mobile and Amazon dodge age bias claims based on targeted Facebook advertising
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Wednesday, March 18, 2020

T-Mobile and Amazon dodge age bias claims based on targeted Facebook advertising

By Ronald Miller, J.D.

Being denied the opportunity to apply for jobs would confer standing if properly alleged, but the complaint allegations failed to establish that the named plaintiffs were personally injured.

A fourth amended complaint alleging that T-Mobile and Amazon unlawfully discriminated against older workers in their use of Facebook to advertise employment opportunities did not contain the necessary allegations to establish standing or personal jurisdiction, a federal district court in California ruled, dismissing the plaintiffs’ putative class and collective action complaint. However, the court did rule that the plaintiffs adequately justified their narrow request for jurisdictional discovery (Bradley v. T-Mobile US, Inc., March 13, 2020, Freeman, B.).

Targeted advertising. Both T-Mobile (a wireless communications company) and Amazon (an online retailer) use Facebook’s ad platform to advertise employment opportunities at their various stores and operations. The named plaintiffs—the Communications Workers (CWA) union and four individuals ranging in age from 45- to 67-years-old—alleged that the companies discriminated against older workers in the use of these platforms to recruit prospective employees.

Facebook gathers a vast amount of information about its users. According to the plaintiffs, Facebook gives its advertisers “the power to use that information to determine which Facebook users will be included or excluded in the population that will receive their ads.” Facebook promotes such targeted advertising to employers as helping them to “minimize the cost of reaching people who are interested in new jobs and maximize the number of people who respond to employment ads.” Factors that advertisers can use to target ads include “age, gender, location, interests and behaviors.”

Age-restricted ads. T-Mobile and Amazon are alleged to have used Facebook’s ad targeting functionality to recruit younger workers and not older workers. They allegedly did this by imposing a “ceiling on the age of people who will receive their job advertisements.” Their ads typically do not feature individual job opportunities, but direct the Facebook user to the advertiser’s Facebook pages. Additionally, users can access a page on the company’s website that has information about a range of job opportunities, so the prospective applicant can view all available positions for which he or she could apply.

Also relevant to this case is a Facebook function called “Why am I seeing this?” When a user sees an ad, he or she can click on this function to view why the user has been selected to see that particular ad. Using this function, a user can view the age range the advertiser selected.

Discrimination theories. The plaintiffs asserted that the use of age-restricted employment ads is part of a “pattern or practice of age discrimination in employment advertising, recruitment, and hiring.” They alleged violations of the ADEA and various state laws, under two legal theories.

First, they alleged that the ADEA makes it unlawful for an employer “to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such employer . . . indicating any preference, limitation, specification, or discrimination, based on age.” The plaintiffs argued that the employers’ advertisements “indicate a preference” for younger workers and against older workers by (1) being targeted to younger workers and excluding older workers; and (2) informing users of the targeting through the “Why am I seeing this” function.

Second, the ADEA makes it unlawful for an employer “to fail or refuse to hire or . . . otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual’s age. The plaintiffs contended that the employers’ age-restricted advertising constitutes disparate treatment in hiring because it is disparate treatment in recruiting.

The employers lodged a facial attack on the sufficiency of the allegations in the fourth amended complaint. The court began its inquiry with the employers’ jurisdictional arguments under Rules 12(b)(1) and 12(b)(2). Finding them meritorious, it dismissed the complaint on standing grounds without ruling on the employer’s motion to dismiss under Rule 12(b)(6).

Individual standing. The individual plaintiffs alleged that as a result of the employers’ allegedly illegal conduct, they suffered various injuries, including informational injury; denial of jobs and the lost wages incident to those positions; the denial of opportunity to apply for jobs; and stigmatic injury.

The court held that the denial of the opportunity to apply for jobs, if properly alleged, would confer standing. However, the allegations in the amended complaint were too vague and conclusory to establish that the named plaintiffs—as opposed to unidentified class members—personally experienced the complained-of injury, the court found.

Union’s associational standing. CWA asserted that it had third-party standing on behalf of its members, which required that it show that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” In this instance, the plaintiffs failed to show that one of three CWA members named as plaintiffs had standing to sue in their own right. That meant that these named plaintiffs could not establish CWA’s standing. Accordingly, the court granted the motion to dismiss the amended complaint for lack of standing.

Lack of personal jurisdiction. The court’s lack of personal jurisdiction over the employers was another barrier to the plaintiffs’ suit. The plaintiffs noted that Facebook’s Terms of Service include a choice-of-venue provision requiring users “to resolve disputes in the Northern District of California or a state court in San Mateo County and submit to personal jurisdiction of such courts.” Therefore, the plaintiffs argued, the employers consented to personal jurisdiction and venue in the district court, and waived arguments regarding personal jurisdiction over them.

However, the employers pointed out that the venue provision stated that it only applied to disputes in which Facebook was a party. Because Facebook was not a party in this action, the venue provision did not apply here, and the employers had not waived their challenge to personal jurisdiction.

Moreover, stripping away Facebook’s conduct, there were no allegations of conduct by the employers that occurred in California. Thus, the court was skeptical that, based on the plaintiffs’ allegations, it can fairly be said that the employers’ allegedly tortious conduct “occurred” in California. All told, the plaintiffs’ allegations appeared to be based on nothing more than the fact that California is part of the United States and the lack of any evidence that the defendants exempted California from their nationwide ad campaigns. As a result, the plaintiffs had not adequately alleged specific jurisdiction.

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