Law360: Facebook Hit With Age, Gender Bias Suit Over Financial Ads

Oct 31, 2019

By Lauren Berg

Facebook's practice of allowing targeted advertising by age and gender systematically discriminates against women and older people by excluding them from some ads for financial services like mortgages, investment opportunities and consulting services, a user alleged in a proposed class action in California federal court on Thursday.

Neuhtah Opiotennione, 54, is interested in receiving information and advertising about financial services in Facebook ads, according to her complaint, but she alleges that she and other women, along with older people of any gender, have been denied the opportunity to learn about financial services because of the social media giant's discriminatory advertising and business practices.

Facebook requires users to disclose their age and gender before they can use the social media site but then uses that information to segregate and classify users to target them with advertisements, according to the lawsuit. Opiotennione alleges Facebook has encouraged financial services providers and other advertisers to use age and gender as a basis for targeting ads, excluding users from seeing ads on the basis of those protected categories.

"Due to Facebook's discriminatory practices, millions of older and female Facebook users have been denied the opportunity to receive valuable advertisements about financial services opportunities that advertisers sent to younger persons and men, and to pursue those financial services opportunities within and outside of Facebook," Opiotennione said.

Facebook has known for at least three years that its discriminatory advertising and business practices for financial services opportunities classify and segregate users based on protected characteristics and deny them equal treatment, the lawsuit alleges.

Opiotennione concedes that in September, Facebook took "took meaningful steps" to stop advertisers from placing ads for credit-related opportunities that discriminated against users based on age or gender. But, she said, Facebook has continued to deny equal opportunity to older people and women regarding financial services, aside from credit opportunities.

"There is no lawful or legitimate basis to exclude older persons or women from receiving the full and equal accommodations, advantages, facilities, and services of Facebook and the financial services companies that advertise financial services opportunities via Facebook," the lawsuit states.

Opiotennione alleges that every time Facebook intentionally excluded an older person or a woman from receiving information about financial services opportunities on Facebook based on age or gender, Facebook violated California's Unruh Civil Rights Act, which outlaws discrimination based on race, gender, religion, age, disability, medical condition or sexual orientation.

Opiotennione is seeking an order to permanently stop Facebook from violating the Unruh Act and to require Facebook to pay Opiotennione and putative class members any disgorgement of its profits from its unlawful or unfair business practices, as well as punitive damages.

Opiotennione's attorney, Peter Romer-Friedman of Outten & Golden LLP, told Law360 on Thursday that they want Facebook to recognize that there are important types of economic opportunities that are being advertised in a discriminatory way. Even though Facebook has made some changes to stop discrimination in credit-related ads, it still has a way to go on the broader spectrum of financial services ads.

"It's important that Facebook elimination discriminatory ad targeting categories, like age and gender, for financial services," Romer-Friedman said. "Facebook can simply apply the same standards it has already adopted and we think it can be done almost overnight."

"Facebook's response to this issue will test its response to civil rights," he added.

A representative for Facebook did not immediately respond to a request for comment.

This isn't the first time Facebook has been accused of discrimination in its targeted advertising.

In March 2018, a group of housing advocacy organizations filed suit in New York federal court, accusing Facebook of letting advertisers exclude people from seeing listings for homes to buy and rent and violating the Fair Housing Act by permitting sellers to discriminate against protected groups based on family status, gender and other attributes.

In June 2018, Facebook asked the judge to send the advocacy groups' case to California, arguing that the plaintiffs had agreed to resolve claims in the Golden State and that a substantially similar suit is already pending there.

Then in August 2018, the U.S. Department of Housing and Urban Development stepped into the battle to hit Facebook with an administrative complaint accusing the social media giant of using discriminatory advertising practices to target home buyers.

In September 2018, job seekers claimed in U.S. Equal Employment Opportunity Commission charges that Facebook discriminates against millions of women and gender nonbinary people by letting companies target job ads on the platform toward men.

In March, Facebook settled the lawsuits alleging it enabled advertisers to illegally exclude certain users from seeing their job, housing and credit ads by agreeing to overhaul its platform to limit those ads from being targeted toward cherry-picked users in a discriminatory way.

Amazon, T-Mobile and hundreds of other companies were hit with a massive class action lawsuit by the Communications Workers of America in December 2017, accusing them of discriminating against older workers by limiting the audience for their Facebook advertisements to only reach younger users.

Amazon has repeatedly tried to escape the suit – first in July 2018, when it said the CWA lacked standing to sue and left out key points required to pursue age bias claims, and again in October 2018, when it argued it never impaired workers from learning about or applying for employment.

Opiotennione is represented by Jahan C. Sagafi, Adam T. Klein, Michael Litrownik, Peter Romer-Friedman and Pooja Shethji of Outten & Golden LLP, Jason R. Flanders of Aqua Terra Aeris Law Group, Matthew K. Handley and Rachel Nadas of Handley Farah & Anderson PLLC, and William Most.

Counsel information for Facebook was not immediately available.


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