Human rights commissions targeting Facebook over job ads

The Canadian and Ontario human rights commissions have taken the exceptional step of joining forces to urge Facebook to stop Canadian employers from being able to post job ads that discriminate against some workers on the basis of age.

In a letter sent to Kevin Chan, head of public policy for Facebook Canada, the two human rights watchdogs said they are concerned that the popular social media platform is allowing employers to violate federal and provincial human rights laws.

Discussions have already begun with the company.

"During these discussions, we advised you of our respective concerns that Facebook's advertising platform facilitates discriminatory advertising in a manner contrary to Canada's federal and provincial laws," wrote Ontario commissioner Renu Mandhane and federal commissioner Marie-Claude Landry.

"The federal, provincial, and territorial human rights laws in Canada protect people from discrimination on the basis of factors like age, sex, race, disability, etc."

The pair called on Facebook to take the same kinds of steps in Canada that it has announced it will take in the U.S. to stop employers from microtargeting ads so that they only appear in the Facebook feeds of people between certain ages.

"We believe that steps should be taken to ensure that comparable additional safeguards are also implemented in Canada, in line with the Canadian federal and provincial human rights laws."

The letter is the first step in a process that could potentially end up before the Canadian Human Rights Tribunal or even make its way up to the Supreme Court if Facebook refuses to heed the call and the human rights commissions decide to pursue the issue.

The letter comes in the wake of an investigation by CBC News that found that Facebook has been allowing employers across the country to post job ads that exclude some workers. While Facebook reminds advertisers on its website that they shouldn't discriminate, CBC was able to identify nearly 100 employers including federal, provincial and municipal agencies that posted ads that were targeted to particular age groups, such as 18 to 34 or 21 to 50.

On the surface, the ads said nothing about age. However, they were set so that they would only appear in the Facebook feeds of people in the targeted age range. Some ads targeted women or targeted men.

Under Canadian human rights law, you can set an ad to be seen by those over 18 but you can't advertise only to a particular age range unless you can demonstrate there is a bona fide job requirement or it is part of a special hiring program.

Facebook has announced plans to stop employers from microtargeting job ads in the U.S. by the end of the year in order to settle legal action brought by civil rights groups there.

In the wake of CBC's investigation, Employment Minister Patty Hajdu called on the Canadian Human Rights Commission to examine the practice in Canada.

"From my perspective, it's behaviour that is breaking the law," she said at the time. "That's why I have asked my office to reach out to the Human Rights Commission so they can take it from here and do the work that they need to do to determine what next steps are."

Facebook says it takes the question seriously and is working on it. However, it has not yet committed to introducing the same measures in Canada that it plans for the U.S.

"Discriminatory advertising has no place on Facebook and we are continually strengthening our policies to prohibit advertisers from using our ads products to discriminate against people," Chan said in a statement. "We had a constructive conversation with the Ontario Human Rights Commission and share their desire to defend against abuse of our platform."

For example, he said Facebook has removed "thousands" of possible categories from its targeting options.

Yves Massicotte, spokesperson for the Ontario Human Rights Commission, said it is willing to work with Facebook.

"Facebook has indicated that it would like to engage the OHRC to try to address the concerns about discriminatory advertising in the Canadian context," he wrote in an email. "We are willing to engage, and hope that Facebook will be proactive about addressing this issue. We will see what results from this before considering any next steps."

Brian Smith, senior counsel for the Canadian Human Rights Commission, said it is unusual for the federal and Ontario human rights commissions to issue a joint letter. He noted the issue straddles both jurisdictions.

Smith said the letter is part of an initial advocacy effort on the part of the two commissions. However, if advocacy doesn't work, each commission has its own powers to take the issue to a human rights tribunal that would have power to order a company to change its practices and to prescribe remedies.

"Sometimes persuasion isn't really effective unless there is a stick behind it that can be used to encourage that compliance," he said in an interview.

The tribunal's ruling could be appealed to a higher court and, potentially, even the Supreme Court of Canada.

Ottawa-based employment lawyer Paul Champ said both commissions have the power to launch investigations and compel the company to produce documents. He said it is important for the human rights commissions to take "robust action" because many of those discriminated against because their age range are excluded from seeing some job ads don't know that they have been denied opportunities.

"It is unusual for human rights commissions to act together in this fashion, but the challenges presented by discriminatory advertising on Facebook are national in scope," he said. "The Ontario and Canadian Human Rights Commissions have put the company on notice that they expect a full and detailed explanation concerning the measures that will be adopted to eliminate this practice."

What Facebook does in Canada should be the same as what it does in the U.S, he said.

"There is no good reason for Facebook to have different practices in Canada than the U.S. as the substantive issues of discrimination are the same," he said. "It seems that Facebook is being disingenuous by providing explanations and excuses rather than concrete action. Presumably Facebook is not as fearful of Canadian laws because damages are so low here compared to the U.S."

Meanwhile, an application for a class action suit against Facebook for allowing job ads to be microtargeted by age has been filed in Quebec Superior Court. The Public Service Commission has stepped up its monitoring of federal government job ads in the wake of CBC's investigation.

Elizabeth Thompson can be reached at elizabeth.thompson@cbc.ca