The Use Of Algorithmic Profiling And Targeting In Related Advertising Might Rein

An empirical study showed that job-related ads distributed on Facebook with a neutral distribution ended up targeting specific groups for specific jobs (example: audience for a cashier position in a supermarket reached an audience of 85% women). The lack of, or reduced, advertising of given jobs to a protected group can be considered discriminatory if the effects of this process undermine the objective of EU law (in term of guaranteeing equal access to the labour market).

Finally, the use of algorithmic profiling and targeting in the advertising of job-related adverts might reinforce existing patterns of discrimination in the labour market. An empirical study showed that employment ads distributed by Facebook with settings geared towards a neutral distribution ended up reaching an audience composed of 85 % women for cashier positions in supermarkets, while ads for taxi driver positions reached a 75 % Black audience and ads for lumberjack positions reached an audience that was 90 % male and 72 % white.187 This form of stereotyping in the exposure to job adverts risks reinforcing structural inequality. While advertising is clearly excluded from the scope of the Gender Goods and Services Directive, as will be examined in the next section, advertising in relation to job positions seems to fall within the scope of access to employment. The algorithmic targeting of employment ads, if discriminatory on grounds of gender, race, age, disability, sexual orientation or religion or belief, could indeed be captured by Article 14(1)(a) of the Gender Recast Directive and Article 3(1)(a) of the Racial Equality Directive and the Framework Directive, which indicate that the prohibition of discrimination applies to ‘conditions for access to employment […] including selection criteria and recruitment conditions’. This can be confirmed by drawing an analogy with the jurisprudence of the Court of Justice in relation to discrimination on grounds of race and sexual orientation, which is also covered by EU law on equal access to employment. In Feryn, Accept and Associazione Avvocatura per i diritti LGBTI, the CJEU ruled that deterring job applicants from protected groups from applying to given job positions was to be considered discrimination, even where no recruitment process was on-going.188 The lack of, or reduced, advertising of, given jobs to a protected group could thus be considered discrimination if it in effect undermines the objective of EU law in terms of guaranteeing equal access to the labour market.189

Date Trend snippet:
30 May 2021

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2020
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