In 1967, the newly formed National Organization for Women staged a of The New York Times and other newspapers. Their demonstration targeted the long-standing practice of printing classified listings in two separate columns: “Help wanted: Male” and “Help wanted: Female,” which of course resulted in the of women from high-paying jobs and industries. As a result of NOW’s advocacy campaign, the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII of the 1964 Civil Rights Act prohibiting race and sex discrimination in employment, finally made clear — over the strong objection of newspapers — that limiting job postings to one sex was unlawful. Sex-segregated classified ads subsequently became a thing of the past.
Or so we thought.
Today, five decades later, sex-segregated job listings are roaring back to life. Enabled by social media platforms like Facebook, advertisers are increasingly using users’ personal data to direct their ads — including for jobs — to individual users based on characteristics such as sex, , and , thus excluding users outside of the selected groups from learning about these opportunities.
We can’t let this archaic form of discrimination continue to take hold. That’s why on Tuesday, the ACLU, along with the Communications Workers of America and the employment law firm Outten & Golden LLP, filed charges with the Equal Employment Opportunity Commission against Facebook and 10 companies that targeted ads for jobs in male-dominated fields to younger male Facebook users only, excluding all women and non-binary individuals, as well as older male users. The case is brought on behalf of three job seekers and the Communications Workers of America on behalf of a proposed class of millions of job applicants. It alleges that these job advertising practices violate federal civil rights laws prohibiting sex and age discrimination in employment.
These laws explicitly prohibit publication of segregated ads, or ads that express a preference for sex or age. Yet that’s exactly what has happened. Facebook requires users to identify their sex in the binary categories of male or female in order to even open an account. While users can later change their sex designation and select from among a few dozen options to describe their gender identity, Facebook still requires users to choose gendered pronouns (male, female, or neutral), which it then offers to advertisers for purposes of gender-based ad targeting. Facebook delivers the ad accordingly, including a notice that the user is seeing the ad because of their sex.
The only difference between Facebook’s ad targeting practice and the sex-segregated classified ads of yore is that Facebook — unlike newspapers, which are distributed to the general public — can actually ensure that specific ads are only delivered to its male or female users, or to users of a specific age range, according to the advertisers’ selection.
In addition to the explicit gender-targeting, Facebook also offers advertisers the ability to use what it calls “Lookalike Targeting,” which allows advertisers to target customers with traits similar to those of their customer base. To understand why this is problematic in the employment context, consider a company with an all-white workforce, which decided to recruit and hire only applicants that “look like” their current workforce. Such a hiring strategy would plainly perpetuate the exclusion of workers of color, violating laws, including Title VII, that prohibit employment practices that have a discriminatory effect. The rules should be no different because it takes place online especially as social media becomes an increasingly in job seeking and recruitment.
While online targeting of some other types of ads may seem relatively benign, or even beneficial (the Yoga Work Pants people have got my number), our legal action shows this power can also be used to exclude from even learning about jobs and other economic opportunities. It is not a coincidence that the jobs highlighted in each of the ads the ACLU has challenged were for positions in fields such as tire salesperson, mechanic, truck driver, technician – well-paid, blue-collar fields from which women have traditionally been excluded.
When employers in male-dominated fields advertise their jobs only to men, it prevents women from breaking into those fields. What’s more, clicking on the Facebook ads brought viewers to a page listing numerous other job opportunities at these companies for which job seekers might be qualified. Because no women saw these ads, they were shut out of learning not only about the jobs highlighted in the ads, but also about any of these other opportunities. Our data profiles should not determine what information is available to us when it comes to economic opportunities.
It’s important to note that online platforms like Facebook are generally not liable for content published by others — this principle is critical to keeping the internet running. But in this case, Facebook is doing much more than merely publishing content created by others. It has built the architecture for this discriminatory marketing framework, enabled and encouraged advertisers to use it, and delivered the gender-based ads according to employers’ sex-based preferences. It also essentially acts as a recruiter connecting employers with prospective employees. In this context, it should be legally accountable for both creating and delivering these discriminatory ad campaigns.
The ACLU began exerting pressure on Facebook several years ago to stop its use of an “ethnic affinity” category, which labeled users as Asian-American or Hispanic or African-American based on what they “liked” on Facebook and allowed advertisers to target them. In response to our advocacy and pressure from members of Congress, other groups, and the public, Facebook took certain steps to eliminate discriminatory targeting in housing, employment, and credit, but it did not always follow through. This past summer, after a lawsuit, the company again to remove 5,000 ad targeting proxies related to race and sexual orientation. But it continues to claim that targeting based on gender and age is somehow permissible.
Facebook must change its platform to prevent advertisers from exploiting user data for discriminatory purposes, and ensure once and for all that all users, regardless of gender, race, age, or other protected status, are given a fair shake. Nothing less is required if we are to ensure that progress toward gender equality is carried forward into the digital age.
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Press ReleaseOct 2024
LGBTQ Rights
+2 Issues
At Supreme Court, Tennessee Seeks to Expand Reach of Dobbs to Ban Health Care for Transgender YouthAt Supreme Court, Tennessee Seeks to Expand Reach of Dobbs to Ban Health Care for Transgender Youth
WASHINGTON – In their brief defending the state’s ban on gender-affirming medical care for transgender youth, Tennessee Attorney General Jonathan Skrmetti has asked the Supreme Court to expand its ruling overturning Roe v. Wade and allow the state to target transgender people’s autonomy over their own bodies, too. In U.S. v. Skrmetti, three Tennessee transgender youth and their families are challenging a state law that prohibits medical providers from prescribing medical treatments to transgender youth, such as puberty blockers and hormone replacement therapies, that are allowed for minors who are not transgender. Represented by the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP, the families argue that the ban violates their Equal Protection rights under the 14th Amendment. In the brief filed today, Tennessee relies on the Supreme Court’s 2022 ruling in Dobbs v. Jackson Whole Women’s Health in an attempt to justify its ban on gender-affirming health care for transgender people. The brief cites to Dobbs at least 10 times in sweeping arguments to justify government sex discrimination. “We’ve seen just how far extreme politicians will push to deny us our reproductive freedom, from banning abortion to threatening IVF to even threatening to put doctors in jail for providing emergency care, with deadly consequences for women’s lives,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project. “The same politicians who are trying to control women have now set their sights on transgender people and their families and are trying to control their bodies and lives. Allowing politicians to continue down this road could hold severe implications for the freedom of all people to decide what is right for their own body.” Tennessee claims that their ban on gender-affirming care does not discriminate on the basis of sex even though it bans minors of one sex from accessing health care it allows to members of another sex. A transgender girl is barred from taking doctor-prescribed estrogen because Tennessee considers it “inconsistent” with her birth-assigned sex of male but a cisgender girl with a birth-assigned sex of female is permitted to take estrogen for any purpose including to affirm her female gender identity. “Since this Project’s founding by Justice Ruth Bader Ginsburg, we have adamantly challenged efforts to limit who we can be based on our gender or ability to bear children,” said Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project. “Tennessee’s attempt to limit who young people can become based on their sex shares a through-line with our nation’s history of subjugating women in the name of biology. The fight for each of us to live fully and authentically must include trans people. There is no ‘transgender’ exception to the U.S. Constitution.” In April 2023, the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP sued the state of Tennessee to block S.B. 1, which prohibits medical providers from prescribing medical treatments to transgender youth, such as puberty blockers and hormone replacement therapies, that it exempts for minors who are not transgender. Following a decision by the Sixth Circuit Court of Appeals, S.B. 1 took effect in July 2023. Since 2021, 24 states have banned hormone therapies for transgender youth. “Laws like Tennessee’s are not benign regulations of medical care; they are discriminatory efforts to exclude transgender people from the protections of the Constitution,” said Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project. “These bans represent a dangerous and discriminatory affront to the well-being of transgender youth across the country and their constitutional right to equal protection under the law.” -
Press ReleaseSep 2024
Women's Rights
Civil Rights Groups Tell Federal Appeals Court that Protections for Pregnant Workers Cover Abortion CareCivil Rights Groups Tell Federal Appeals Court that Protections for Pregnant Workers Cover Abortion Care
WASHINGTON, D.C. - On Friday, a broad coalition of labor, workers’ rights, and gender justice organizations — led by the American Civil Liberties Union (ACLU), the ACLU of Arkansas, and the National Women’s Law Center (NWLC) — filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit in support of the Equal Employment Opportunity Commission’s (EEOC) regulations implementing the landmark Pregnant Workers Fairness Act (PWFA), including the regulations’ explicit protection for workers who have abortions. The PWFA, which took effect last year, was the culmination of a decade-long campaign to secure access to reasonable accommodations for workers with temporary limitations caused by “pregnancy, childbirth, and related medical conditions.” The EEOC’s regulations provide comprehensive guidance to workers, employers, and the courts about the statute’s range of protections, including job-protected time off for medical treatment and recovery. The amicus brief filed in the U.S. Court of Appeals for the Eighth Circuit supports the EEOC in a challenge by 17 red states that are trying to block the PWFA regulations’ coverage of accommodations for abortion-related care. In June, the U.S. District Court for the Eastern District of Arkansas dismissed the states’ challenge, and the states appealed to the Eighth Circuit. Their appeal includes a request that the Eighth Circuit issue a preliminary injunction of the regulations’ abortion provisions. The ACLU-NWLC brief details the federal law’s longstanding ban on discrimination against workers who obtain abortions – protection the PWFA intended to continue. The brief also documents the accounts of workers whose health and jobs were put at risk when their employers denied them accommodations, including time off, for abortion care. Such accounts illustrate the urgent need for clarity with respect to the PWFA’s coverage of abortion-related accommodations, and the devastating medical and financial consequences if such accommodations are denied. “Abortion has long been recognized as part of the full spectrum of workers’ pregnancy-related needs that are protected by the law, ” said Gillian Thomas, senior staff attorney at the ACLU’s Women's Rights Project. “The states’ challenge has created uncertainty, and seeks to deprive workers of essential, job-protected time off for abortion care, posing significant health risks and leading to forced pregnancies. The EEOC regulations are vital to ensure pregnant workers don't have to choose between their health and their jobs.” “Extremist politicians are demonstrating repeatedly their willingness to risk women’s health to advance their anti-abortion agenda,” said Gaylynn Burroughs, vice president for Education and Workplace Justice at the National Women’s Law Center (NWLC). “Let’s be clear: abortion care is pregnancy-related care, and stripping essential protections for abortion from the PWFA would endanger the health and economic security of pregnant workers.” “The Pregnant Workers Fairness Act and its regulations provide a lifeline for workers who need accommodations during the most critical periods of their lives. Attempting to strip away these protections, particularly for abortion-related needs, is an affront to the rights and well-being of pregnant workers,” said John Williams, legal director of the ACLU of Arkansas. “All people in all aspects of pregnancy, including abortion, should be treated with the care and consideration they deserve. We stand firmly with the EEOC in defending these essential protections.” A copy of the brief can be found here. -
PodcastSep 2024
Women's Rights
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Press ReleaseJul 2024
Women's Rights
LGBTQ Rights
ACLU Condemns House Measure Against Department of Education Title IX RuleACLU Condemns House Measure Against Department of Education Title IX Rule
WASHINGTON – Today, the U.S. House of Representatives voted to pass H.J. Res. 165, a Congressional Review Act resolution disapproving of the U.S. Department of Education’s final Title IX rule providing guidance to schools on protecting students from sexual harassment, pregnancy discrimination, anti-LGBTQ discrimination, and other forms of sex discrimination. Mike Zamore, ACLU National Policy and Government Affairs Director, had the following response: “Today’s vote to completely repeal the Title IX rule takes a sledgehammer to the government’s ability to ensure that all students have the opportunity to learn free from sex discrimination and harassment. Stripping critical civil rights protections from LGBTQ students and students who are pregnant and parenting - as this resolution would do - is something that all members of Congress should strongly oppose. This is also not how Congress should act to protect the rights of students who face disciplinary action under Title IX because passing this resolution would prevent future rulemaking to ensure fair processes in school disciplinary proceedings.” The ACLU’s letter urging a “No” vote on H.J. Res. 165 can be found here: /documents/aclu-urges-no-vote-on-h-j-res-165 The ACLU’s statement on the final Title IX rule can be found here: /press-releases/155090