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Can employers use targeted job ads to recruit applicants? A recent CBC investigation investigation revealed that many employers use ad settings that discriminate against some potential hires.

WHO USES TARGETED FACEBOOK JOB ADS?

In fact, since 2017 nearly 100 Canadian employers targeted employees in a specific age range. CBC discovered 16 ads targeted based on gender. Employers using the demographic targeting function included Seneca college, the Canadian Coast Guard, Elections Canada and other public employers. Big corporate players like Ikea and Canadian Tire also used the function.

While Facebook has come under fire for permitting these practices, for now only U.S. users will be barred from placing ads that discriminate through targeting.

ARE TARGETED FACEBOOK JOB ADS ILLEGAL?

That depends.

Canadian law sometimes allows discrimination. For example, employers who are participating in a special youth employment program might be allowed to target young people with their ads (see our post on
affirmative action to learn more). Similarly, a women’s shelter might be able to target women if gender is a real job requirement for the role. And, employers who provide personal support workers may legitimately need employees of a particular gender due to legal client preferences.

As far as we know, no Canadian court or human rights tribunal has ever considered whether targeted job ads are against the law.

However, for most employers and most positions this is dangerous territory.

In Ontario, the Human Rights Code makes it illegal to discriminate against employees (or prospective employees) based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

In addition, the Human Rights Code bans “announced intention to discriminate”. This rule is applied in cases where an employer’s job ad says things like “strong men wanted” or “office girl needed” without a solid justification. This rule could mean trouble even if the announcement is made via subtle targeting.

Other provinces and federally regulated workplaces are covered by similar laws. And, government employers are under additional obligations under section 15 of the Canadian Charter of Rights and Freedoms.

WHAT HAPPENS TO EMPLOYERS WHOSE FACEBOOK JOB ADS DISCRIMINATE?

Employers who violate the Code in their recruitment process can face a Human Rights Application for damages including lost income and damages for injury to job applicants’ dignity.

Unfortunately for job applicants, it can be hard to prove discriminatory recruitment or hiring practices. You rarely know who else has applied or been interviewed for a position. And hiring is a pretty subjective practice at most employers.

Even when job applicants are successful in proving discrimination, they often don’t see huge damage awards.

For example, in one case an employer asked an interviewee how old she was and then didn’t hire her. She received just $1,815 in lost income and $15,000 in general damages for age discrimination, even though the employer didn’t participate in the hearing.

In another case , a newly hired employee was fired after his boss asked him about his ethnicity on his first day. He received just $1,500 since the discrimination did not affect him too deeply – he explained that he was used to it. (Note: Moly Law doesn’t think we should have to get used to discrimination or that employers should get off easy if we are)

Complainants who apply for a job just to prove its discriminatory may walk away with nothing, as one man learned when he applied for a job in response to a post seeking only women applicants. He didn’t seem to really want the job.

Likewise, job applicants who see a discriminatory job ad but don’t apply – or can’t apply due to its removal – may get a disappointing outcome at the Human Rights Tribunal. Applicants complaining on behalf of other groups or persons after seeing an ad they think is problematic are also generally out of luck .

Considering how nefarious hiring discrimination is, the challenge in proving discrimination combined with low damages means employers might not be deterred from continuing to break the law.

SOCIAL MEDIA AND HIRING DISCRIMINATION

The CBC report may lead to more claims of hiring or recruitment discrimination. After all, participants in a human rights application have the right to receive copies of the other side’s arguably relevant documents. More lawyers may begin to advise their clients to ask for records of a company’s facebook job ad information – and who knows what this may reveal! It could make it easier to prove discrimination in hiring (at least until employers find a new technique).

Unfortunately, this isn’t likely to stop employers from using social media to discriminate against job applicants.

It’s uncommon for Canadian employers to require a photo or personal information in a job application (this practice is common in other jurisdictions), in large part because this knowledge risks that employers would inadvertently run afoul of human rights laws.

However, this information is available to any employer with an internet connection. Most employees have some social media presence. In fact, this presence can be crucial to a worker’s success in their industry or facilitate necessary networking. As a consequence, though, employers can easily find an employee’s picture on Twitter or LinkedIn. Poor Facebook privacy settings may give a recruiter access to information about your age, marital or parental status and sexual orientation.

With or without targeted Facebook job ads, today’s job applicants are vulnerable to discrimination, whether conscious or not.

Resources:

Ontario Human Rights Commission, Human Rights at Work 2008 – Third Edition, Advertising and Interviewing and Making Hiring Decisions

Rocha v. Pardons and Waivers of Canada, 2013 HRTO 537 Canlii

Yildiz v. M.A.G. Lighting, 2012 HRTO 2232 Canlii

Cenanovic v. 2332489 Ontario Inc., 2015 HRTO 833 Canlii

E.C. v. Ready Employment Agency, 2016 HRTO 1630 Canlii

Konesavarathan v. Guelph (City), 2016 HRTO 1453 Canlii

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