Labor, Civil Rights Lawyers Press Anti-Discrimination Claims Against Facebook

Employee-rights lawyers are pressing a lawsuit against Facebook Inc. that alleges the social media company’s advertising platform unlawfully permits businesses to promote job, credit and housing opportunities to white, wealthy users and exclude people of color or those in less affluent zip codes.

The class action in San Jose, California, federal district court claims Facebook’s advertising tool that allows businesses to exclude groups, such as African-Americans, Latinos and Asian-Americans, from advertising opportunities violates federal housing and civil rights laws.

The plaintiffs firms involved in the case—including Outten & Golden, which last year hired P. David Lopez, the former general counsel to the Equal Employment Opportunity Commission—on May 18 asked a judge to reject Facebook’s push to end the litigation. Facebook’s lawyers at Munger, Tolles & Olson contend the company is shielded from liability under a federal law that gives wide protection to companies that publish third-party content. The lawyers also argue Facebook forbids advertisers from violating anti-discrimination laws.

A hearing is scheduled for June 1 in front of U.S. District Judge Edward Davila of the Northern District of California.

The court fight has drawn a comparison to redlining, the illegal practice once employed to exclude less affluent and minority neighborhoods from business services, and the case raises questions over protection for individuals from discrimination in the 21st century.

“Facebook is saying that discrimination in advertising is as normal as apple pie,” said Peter Romer-Friedman, an Outten & Golden counsel in Washington. “Fundamentally, people of color and white people have the same exact needs for a job and apartment and student loan and mortgage. Every group is entitled to receive equal recruiting and advertising when it comes to opportunities.”

The three plaintiffs are Suzanne-Juliette Mobley, an African-American woman from New Orleans, Daniel Adrian Manriquez, a Latino man from Phoenix, and Victor Onuoha, an African-American man from Gretna, Louisiana. All three live in predominantly minority neighborhoods, are regular Facebook users and are seeking housing, job and credit opportunities.

Facebook’s advertising platform indisputably allows advertisers to target an audience using hundreds of categories curated by the social media site. Users each see advertisements catered to interests, background and location. Yet, it is illegal to advertise or publish anything that indicates preference or limitation based on race, religion, sex or national origin in housing and employment under federal civil rights law.

“Facebook’s discriminatory marketing platform enables employers, housing providers and creditors to draw a red line around a predominantly African-American, Latino or Asian-American community and exclude the residents in that community from receiving advertisements about employment, housing and credit opportunities,” the suit claims.

The social media company’s response argued in part that the nature of advertising is to target groups, such as print advertisements for women’s clothing placed in Vogue and commercials for men’s shoes broadcasting on ESPN. They also noted examples of targeting ethnic groups include allowing Spanish-language television stations to target ads to Latino users or a neighborhood cafe advertising in its zip code. The targeted advertisements can be attractive for users and the advertisers to give people experiences that are relevant to their interests.

Other websites, such as Airbnb and Uber, have faced discrimination claims by those using their platforms in recent years as companies tackle questions about how to translate the interaction between long-held civil rights laws and new technologies.

“Applying traditional civil rights concepts to emerging practices requires the re-evaluation of how the housing industry operates in advertising and otherwise to promote more integrated communities,” said Morgan Williams, general counsel to the National Fair Housing Alliance. “To the extent these online vehicles interface with the housing market, they must account for their civil rights obligations or risk restricting housing choice on the basis of race, national origin, religion and other protected.”

Facebook, with 1 billion active users, is not a “passive player in the commercial market.” In 2015, Facebook earned 95 percent of its nearly $18 billion in revenues from third-party advertisers, according to the lawsuit.

ProPublica examined Facebook’s advertising practice in an investigation last year, prompting Facebook to update its policy. The reporters purchased an advertisement that targeted Facebook members who were house-hunting and chose to exclude anyone connected to an “affinity” for African-American, Asian-American or Hispanic people. Experts interviewed for the story called the practice blatantly illegal.

Following the article, the company released a statement that detailed ways it would adjust its automated system to prevent advertisers from using racial categories for housing, employment and credit opportunities. The changes included changing “ethnic-affinity” to “multicultural affinity” and not including these categories for housing, employment or credit.

“We heard concerns that discriminatory advertising can wrongfully deprive people of opportunities and experiences, particularly in the areas of housing, employment and credit, where certain groups historically have faced discrimination,” Facebook’s statement said. “We’ve updated our policies to make our existing prohibition against discrimination even stronger. We make it clear that advertisers may not discriminate against people based on personal attributes such as race, ethnicity, color, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, medical or genetic condition.”

In the pending suit, Facebook argued in court papers that the complaint is without merit because the social media site should not be considered the publisher of the advertisements that target some groups and not others.

That argument raises the question of whether a company is liable if a particular tool allows a business advertising to perform a discriminatory act, without specifically pushing or requiring it.

The U.S. Court of Appeals for the Ninth Circuit in 2012 said a neutral tool that did not require or encourage discrimination was protected from discrimination allegations. The ruling in the case—which involved Roommates.com, a roommate-matching website that was sued for gender discrimination—pointed to a section of the Communications Decency Act that prohibits claims seeking to impose liability on websites that publish third-party content. A California federal trial judge in November ruled in favor of Twitter Inc. in a suit that alleged the social media company should be liable for publishing messages from alleged terror groups.

Online companies, such as Next Door and Airbnb, have made effort to adjust their sites to prevent unwanted discrimination to ensure people would be less likely to engage in racial profiling, said Eric Goldman, professor at Santa Clara University School of Law, where he is also director of the school’s High Tech Law Institute.

Goldman said the Ninth Circuit’s Roommates.com decision will be key to resolving the suit against Facebook and “casts a long shadow” over future rulings over such issues. He called the Facebook case a reminder of the implicit collision from the online immunity rights and discrimination laws.

Regardless, he said it’s good for companies to be proactive in preventing discrimination on its platforms.

“It’s a reminder that discrimination can appear in many forms,” Goldman said. “Even when the tools not designed to facilitate can be used to that effect.”

Contributing Author

Erin Mulvaney

Erin Mulvaney writes for Law.com, sister site to BenefitsPRO.com.

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