Technological advancements frequently outpace the law’s ability to respond to the challenges they create. With the click of a button, employers can now reach hundreds or even thousands of potential job applicants by posting advertisements on online platforms. But research suggests that this convenience is facilitating certain recruitment practices that may be discriminatory.
A recent CBC investigation suggests that using online advertising to target job advertisements to certain demographics may be discriminatory under Canada’s human rights legislation. The investigation discovered that employers have been able to use Facebook’s platform to “microtarget” audiences for their job advertisements by selecting various criteria to determine who will be able to view the ads based on personal characteristics. Most employers set age as a criterion, while a minority in CBC’s investigation targeted their job ads based on gender.
The investigation revealed that in addition to private sector employers, various government agencies at the municipal, provincial, and federal level have been engaging in this practice, and Employment Minister Patty Hajdu is calling on the Canadian Human Rights Commission to examine how employers use Facebook for targeted recruitment.
The legal landscape in Ontario
Ontario’s Human Rights Code (the “Code”) applies to most employers in the province. It addresses job advertisements at s. 23(1), stating that,
The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
There is relatively little case law on s. 23(1), but typically it is cited where the content of an advertisement is alleged, either directly (i.e. only women need apply) or indirectly (i.e. must be able to lift 40 pounds), to classify or indicate qualifications by a prohibited ground of discrimination such as sex or disability.
Merely publishing an advertisement which classifies qualifications by a Code ground can be enough to trigger a damage award against an employer. If an applicant can prove that the posting impacted negatively on his or her dignity or self-respect, there is no requirement to show an intention to discriminate on the part of the employer, nor to show that job candidates were in fact discriminated against based on the criteria in the ad.
The language of s. 23(1) seems at first glance to indicate that it applies to the content of advertisements, not to the locations where they are displayed. However, the Code is remedial, quasi-constitutional legislation, and it is given a ‘large and liberal’ interpretation by decision-makers to advance the goal of preventing discrimination against identifiable protected groups. As such, it seems possible that these advertising practices could be captured by Ontario’s Code.
Federal requirements are more expansive
The Canadian Human Rights Act, which applies to the Federal government as well as federally regulated employers such as banks and airlines, is more expansive than Ontario’s Code. It contains language similar to Ontario’s s. 23(1). However, it also contains additional language at s. 10 indicating that it is discriminatory for an employer to,
…enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment…that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
It seems much more clear under the Act than under Ontario’s legislation that a federally regulated employer paying to advertise on Facebook ‘enters into an agreement affecting recruitment’ that ‘tends to deprive an individual or class of individuals of any employment opportunities’ within the meaning of the Act when it selects who will see its job ads based on their age or sex.
Is Facebook merely a digital corkboard?
While online advertising is now standard in recruitment, an employer might still place a job ad in a magazine whose readership it knows to be almost exclusively in the 20-30 year-old range in hopes of attracting young talent. A small business owner might pin a job advertisement to the corkboard at the women’s only gym she frequents, where it is certain that no men will see it, regardless of whether her goal was to exclude men. Although one might be able to imagine circumstances under which these practices could be problematic, there is no case law to suggest they are discriminatory.
It is possible that these occurrences are so minor that they have simply never come to the attention of job-seekers, or of Canadian human rights tribunals. But are Facebook and other online platforms merely digital corkboards?
To draw analogies, we need to understand more about the inner workings of such digital services. One employer in CBC’s investigation suggested that it actually publishes two job advertisements for each position, one targeted toward men, and the other toward women. Paradoxically, it claimed that this is the only way of ensuring that women will see the ads at all. The employer believed that a quirk of Facebook’s algorithm had been showing the ads to men more often than women unintentionally based on other factors when no gender preference was indicated. It stands to reason that online advertising platforms will adjust their algorithms to maximize response rates and increase ad revenue. If men are more likely to respond to an ad for a police service job, for instance, the algorithm may show the ad to men more often than women. This raises interesting questions about whether artificial intelligence simply reflects a society’s ingrained biases and prejudices back at it, and whether existing laws are capable of addressing this phenomenon effectively.
Unlike posting a job flyer on a corkboard, it seems more calculated to actively select criteria which prevent people of certain age groups or genders from viewing an online job ad, especially when the alternative is to simply refrain from selecting such restrictions. Many online services charge employers for posting job ads based on the number of ‘clicks’ those ads generate. From an employer’s perspective, it may be appealing to target audiences most likely to be qualified for and interested in a position to save advertising money. However, if the practice is found to be discriminatory under Canadian human rights legislation, it is unlikely that cost savings would be a sufficient defence.
Given the publicity generated by CBC’s investigation and the Employment Minister’s comments, it seems likely that online recruitment practices may soon be put under the microscope by Canada’s human rights tribunals and commissions. While it is not clear whether individual employers will be targeted, a Quebec law firm filed an application in Superior Court this week seeking permission to begin a class action lawsuit against Facebook alleging that the social media service has facilitated discrimination in ads for jobs and housing based on factors such as age and gender. This suggests that the problem is systemic in a digital age, and goes beyond any single problematic job ad. However, individual employers should seek legal advice if they are unsure about whether their recruitment practices comply with human rights legislation.