Could advertising vacancies on social media be discriminatory?

After research revealed Facebook filters who sees ads based on their gender, People Management asks legal experts if advertising on such platforms could breach equality law

Legal experts have warned that advertising job adverts through Facebook could lead to discrimination claims after a human rights organisation found the social media platform filtered who saw job postings based on protected characteristics.

Global Witness submitted complaints to the UK’s equality watchdog this week after its investigation revealed that real job adverts posted on Facebook were disproportionately viewed by the genders stereotypically associated with those roles.

The NGO found that, without asking the social media platform to target adverts, Facebook’s automated ‘optimisation for ad delivery’ system showed roles for nursery nurses more often to women, and roles for mechanics more often to men.

More than nine in 10 (95 per cent) of those shown an advert for nursery nurse jobs were women, while 96 per cent of the people shown an advert for mechanic jobs were men.

Similarly, three-quarters (75 per cent) of users shown an advert for pilot jobs were men, and more than three-quarters (77 per cent) of people shown posts for psychologist jobs were women.

A Facebook spokesperson told People Management: “Our system takes into account different kinds of information to try and serve people ads they will be most interested in, and we are reviewing the findings within this report.” 

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The company also said it had been exploring expanding limitations on targeting options for job, housing and credit ads to other regions beyond the US and Canada, and plan to have an update in the coming weeks.

However, employment experts have warned that firms using such services could be opening themselves up to legal claims.

“An employer could be acting in breach of the Equality Act because of the way Facebook’s algorithm operates,” said Alan Lewis, partner at Constantine Law, citing Section 39(1)(a) which requires employers not to discriminate against a person in the recruitment arrangement including through practices such as advertising.

When asked if employers inadvertently undermine their own diversity efforts by advertising on Facebook, Lewis said: “The answer is a resounding yes.”

Yvonne Gallagher, employment partner at Harbottle and Lewis, added that if any website or media provider were known to operate an algorithm that limited access for particular groups on the basis of a protected characteristic, the employer themselves could be liable under the Equality Act.

While it was understandable that employers would want to use the big advertising platforms given their “huge” reach, Gallagher said employers needed to be “alive to risks arising from algorithms that reinforce rather than tackle unlawful discrimination referrable to protected characteristics”.

But, she added, knowledge about the adverse impact of a particular algorithm would “likely to have to be widespread for a claim [against an employer] to succeed”. Because of this, she advised employers to keep an eye on any criticisms levelled at social media sites in order to avoid facing claims.

Lewis also warned that employers could be liable even if they were unaware or did not approve of a recruitment agency or social media platform’s actions, noting that the Equality Act specifically says that “anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal”. 

“One could easily see how an employer engaging Facebook to place an advert for a mechanic could be liable for sex discrimination where Facebook’s algorithm means that its ads are shown almost exclusively to men, even though the employer did not know about or approve of Facebook’s actions,” he said.

Lewis suggested employers use a range of publications, both online and offline, that “appeal to viewers on a basis which is much more in line with equality” and are targeted at men and women and readers of different age groups.

Global Witness, which filed complaints to both the Equality and Human Rights Committee and the Information Commissioner's Office, is calling for investigations into whether the algorithms used to promote job ads infringe the Equality Act and the data protection laws outlined in GDPR.