JOB SITES HAVE SOME EXPLAINING TO DO
The headline is not just a quote from Ricky Ricardo on “I Love Lucy.” It’s a summary of what several online job sites are facing in Illinois.
Lisa Madigan, the Illinois Attorney General, has delivered letters to a number of online job recruitment services asking questions about whether their practices wind up discriminating on the basis of the age of users. If so, that would be a problem under state and federal law, which indeed is frowned upon.
In her letter to Monster Worldwide, the AG notes:
When users attempt to build a profile on Jobr for purposes of applying for jobs listed on Jobr, they are directed to fill in their work experience and education information, A user that wishes to enter a start year for previous employment or an educational experience prior to 1980, however, is not able to do so. When users click on a drop-down menu of choices for start dates for education and previous employment, 1980 is the earliest possible choice. As a result, many users cannot complete accurate profiles and proceed to apply for jobs using the Jobr platform. In essence, Jobr excludes users who started high school prior to 1980-in other words, users who are about 52 or older-from its Profile feature and thus from full enjoyment of Jobr’s services.
It’s possible that Monster is deliberately looking to avoid dealing with people who are 52 or older. It’s also possible that it doesn’t consciously intend that at all. But that may not matter. A practice that results in discrimination is just as problematic as one that intends to discriminate. So clearly, Monster and similar services have some explaining to do.
And more specifically, they’re going to have to answer these questions posed by Ms. Madigan:
- What is the process by which Monster or Jobr selected 1980 as the earliest year for users of Jobr to indicate their start date for any educational or employment experience in building profiles?
- Does Jobr offer any alternate methods for individuals with graduation or work experience dates that begin earlier than 1980 to build an accurate profile using tools on Jobr?
- Has Jobr or Monster considered alternative methods for permitting users to indicate their education or work experience start dates in building their profiles using Jobr, such as permitting users to fill in the date manually rather than selecting from a drop-down menu?
In many cases, providers of interactive computer services have avoided liability by relying on the federal Communications Decency Act. Under that statute, a provider of a service such as Monster isn’t considered the publisher of content provided by a third party. So one could argue that the applicant is the third party supplying the content that’s discriminatory. And if that sounds a little cynical, let’s not forget that I am a lawyer. But aside from the cynicism, it’s likely not much of a legal position.
Where the provider essentially controls the what content the user can provide, the service itself is enough a part of the content creation such that the CDA protection isn’t available.
I don’t know how Monster will answer Ms. Madigan’s questions. But if they aren’t satisfactory, I’m sure there’ll be plenty more where those came from.