Many, many companies recruit at colleges and universities. They hold meet and greets, provide free food (a guaranteed method of attracting college students), and conduct interviews that only students at that particular university are eligible for. We don't call this age discrimination because, theoretically, old people (defined legally as over 40) are allowed to attend college and would be eligible to apply for such job. But, let's be honest here: We know darn well most college seniors will be under the age of 25.

Is that significantly different than running a help wanted ad on Facebook and limiting it to people ages 18 to 24, as UPS recently did for a part-time package handler job?

Debra Katz, a Washington employment lawyer, says "It's blatantly unlawful," in the Daily Mail

Facebook, of course, says it's not. It's just good business sense. Who are the people most likely to want a part-time package handling job? Well, it's probably not 65-year-olds or even 35-year-olds. It's likely to be young people who are still, at least partially, supported by mom and dad and are simply looking for some fun money rather than paying a mortgage and orthodontist bills. 

What Does the Law Actually Say?

The Age Discrimination in Employment Act (ADEA) prohibits discrimination against people who are over 40. Incidentally, it doesn't protect you against age discrimination if you are under 40, so a business can easily say they won't hire 25-year-olds, but can't say they won't hire 45-year-olds.

But, just what actually constitutes employment discrimination when it comes to hiring? Clearly, if two people apply, one 45 and one 25, you must treat the applicants the same and hire based on qualifications, not age. But can you target certain age groups?

 Targeted Advertising is How Facebook Makes Money

Right now, the ads I'm seeing on Facebook are clearly targeted to me. I have an ad that (somewhat ironically), wants to sell me tools to properly target Facebook ads. I run Facebook ads from time to time (although have found them to be largely ineffective). The next advertisement is for a pocket scanner. I clicked on a go fund me for this product once and now it follows me around the internet. 

Was age a part of the company's decisions to target me for these ads? Well, it turns out yes. The first ad was targeted to "people ages 18 to 59 who live near Basel, Basel-City" the second  "people ages 35 and older who live in Switzerland." Now keeping in mind that Swiss age discrimination laws are different than US discrimination laws, I think most of us are okay with that. We understand that companies don't want to waste money showing ads to people who are highly unlikely to buy their products.

Should we also understand that employers don't want to waste their money showing ads to people who are unlikely to have any interest in taking such a job?

Are Age Targeted Employment Ads Illegal?

Clearly, I'm not a lawyer, but not all lawyers agree with Ms. Katz, quoted above. The lawyers at Facebook, Verizon, and UPS, all think it's not illegal and that it's not different than hiring from a university or placing an advertisement in a place where people in a certain demographic are likely to see it.

"Simply showing certain job ads to different age groups on services like Facebook or Google may not in itself be discriminatory--just as it can be OK to run employment ads in magazines and on TV shows targeted at younger or older people," Facebook VP of ads Rob Goldman wrote in a December 20 blog post. "What matters is that marketing is broadly based and inclusive, not simply focused on a particular age group."

The ad that I think is most problematic is one from Facebook itself. According to the Daily Mail, they posted an ad for jobs in their engineering department and targeted it for people between the ages of 21 and 55. This means that they aren't looking for a specific entry-level job or a mid-career job, or even a senior leadership job. But what they are saying is we aren't interested in people over 55.

If it were more narrowly tailored I would think it would be less discriminatory. For instance, if you need someone with at least 10 years of experience in a job, it makes sense to exclude the under 30 crowd, because they can't have enough experience. (Incidentally, there's nothing illegal about that.) If you're hiring an entry-level job, there aren't that many people who are looking for an entry-level job at 55. But, to say you'll target all adults up to age 55 seems to push the legal limits.

So overall, I think it can violate the laws against age discrimination, but I don't think all age targeted ads are illegal. Context matters. 

Age Discrimination is Real

None of this is to say that age discrimination isn't real. In my job, I've encountered far more cases of alleged age discrimination than any other form of discrimination. Forbes noted two areas of age discrimination where problems exist.

First, age discrimination is still pervasive when it comes to hiring older workers. This is the troubling frontier of age discrimination in the job market. Some labor market research by Joanna Lahey, an economist at the Bush School of Government & Public Service at Texas A&M University -- the Age, Women, and Hiring: An Experimental Study -- is illuminating. Lahey sent out resumés to almost 4,000 firms in the Boston and St. Petersburg, Fla. areas in 2002 and 2003, focusing on women with work histories of 10 years or less who were applying for entry-level positions. The only difference in the resumés was age, which ranged from 35 to 62. Lahey discovered that applicants under 50 were 40% more likely to be called back for an interview than those over 50.

Second, stereotypes that peg older workers as low-productivity employees who are stuck in their ways remain infuriatingly durable. "One thing that always strikes me is social attitudes," says David Neumark, economist and director of the Center for Economics & Public Policy at the University of California, Irvine. "People who would never make a racist or sexist joke will make an ageist joke without thinking about it. The social acceptability of that is remarkable."

I absolutely see both of these problems. But, on the other hand, I see people who no longer wish to learn new skills, or think they've earned their spot and don't have to work hard anymore. I had one woman tell me that her job was safe because she told her boss she would sue for age discrimination if she got fired. This same woman also frequently missed work because she "didn't feel like coming in." Yes, she got fired. No, she didn't win a lawsuit.

Employment attorney Dan Schwartz says that, as a general rule, when people claim they were discriminated against, they probably were not.

Odds are, you probably weren't discriminated againstAgain, I'll state the obvious that discrimination still happens and if it does, it should be rooted out and stopped. Period. But in the overwhelming majority of employers I've dealt with, I just don't see it happening. And, when I've been asked to provide advice on an employment situation that just feels off, I typically advise the employer to rethink its plans.  Most businesses I've dealt with just want to have solid employees and minimize issues in the workplace.  If your employer had legal counsel review the termination decision, it means the employer is trying to comply with the law -- not find some legal loophole to get around it.​

Should You Target Job Ads by Age?

If it makes sense, yes, but check with your lawyers to make sure it makes sense. You're on far better legal grounds excluding younger people for lack of experience than older people. Make sure you don't post just in areas where you target by age. Every job posted on Facebook should also appear on your company webpage. And, because you really, really should, I'll say it again: check with your labor and employment lawyer. Do not ask the lawyer who helped with your incorporation or handled your divorce. It is far better to waste a few dollars on an ad that hits people who are unlikely to apply for a job than it is to inadvertently break the law and end up in court. 

Updated on 12/21 to include a statement from Facebook's vice president of ads.

Published on: Dec 21, 2017