April 18, 2019

By: Kimberly Smith

Long gone are the days when job seekers flipped through the daily newspaper in search of their next gig. In the internet age, social media connects employers and job seekers with relative ease.

For employers, social media platforms have become the advertising medium of choice given their ability to collect vast amounts of data on users, including likes, dislikes, geographic location, age, race and gender. In the employment context, microtargeting involves the use of this data to target advertisements to potential job candidates. It provides employers with a cost-effective and efficient means of attracting potential candidates in the ever elusive search for the “right fit”. However, there is a fine line between microtargeting and discriminatory pre-employment practices that may be found to run afoul of the law. On its face these advertisements may be neutral with no reference to protected grounds. However, this will not necessarily preclude a finding of discrimination given that the very purpose of microtargeting is to restrict who is able to view a particular job ad on the basis of certain characteristics, such as age – a prohibited ground under the Ontario Human Rights Code (“Code”).

The Ontario Human Rights Code is founded on principles that recognize the dignity and worth of every person, understanding and mutual respect, and equal opportunity to participate in and contribute fully to the community. Flowing from these principles employers have legal obligations in the recruitment process, and specifically with respect to job advertising. Advertisements that directly or indirectly classify individuals based on prohibited grounds, such as race, place of origin, ethnic origin, citizenship, sex, sexual orientation or age violate section 23(1) of the Code.

The Code predates microtargeting and does not squarely address its use. Notwithstanding, the thrust of existing provisions relating to advertising and pre-employment inquiries suggests that the practice of microtargeting runs counter to the Code’s provisions.

References in the Code to obligations at the pre-employment stage include Section 23(4), which states in part that “… the right … to equal treatment … is infringed where an employment agency discriminates against a person because of a prohibited ground in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.” The reference to “employment agencies” is perhaps indicative of the time in which the Code was enacted. Arguably, in the technological age, social media platforms perform functions akin to an employment agency.

Section 23(2) also provides protection during the pre-employment process, finding discrimination where “… a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies qualifications by a prohibited ground of discrimination.”

In essence, advertisements that “unfairly prevent or discourage people from applying for a job” risk violating the Code. It is for this reason that microtargeting is problematic. Legislative changes may be in order to keep pace with the changing ways in which employers seek and attract talent.

Facebook is currently facing the possibility of a class action lawsuit with the filing of an application for authorization by Montreal based law firm, IMK LLP, in the Quebec Superior Court last week Thursday as reported by CBC News. The application alleges that a job-seeking 65-year old legal assistant (and active Facebook user) was precluded from viewing job advertisements on Facebook over a 2-year period due to her age. The class action proposes to cover hundreds of thousands who may have suffered discrimination in the search for employment and/or housing. Microtargeting has already been the subject of class actions south of the border. Following a lawsuit in the US alleging discrimination in advertising, a settlement was reached last month in which Facebook has agreed to institute changes to prevent discrimination in employment, housing and credit advertising.

In theory, the ability to advertise on social media platforms creates limitless avenues for employers to advertise to a wide range of individuals, which should create enhanced access to employment opportunities for a diverse group of job-seekers. However, when classifications are employed that are neither reasonable nor a bona fide job requirement, the risk of perpetuating systemic discrimination arises. To be sure, ad targeting based on age or any other prohibited ground is hardly novel. However, both the precision with which this can now be done and the near complete exclusion of groups based on demographic factors are unprecedented, making the situation one that is ripe for litigation.