Can you target advertisements to a group based on age? The Communications Workers of America (CWA) and several individuals think not and filed suit against T-Mobile, Amazon, Cox Communications, and Cox Media Group. The complaint alleges that these companies ran afoul of the Age Discrimination in Employment Act (ADEA) by sending ads targeting Facebook users in specified age bands (based on their Facebook profiles). The ADEA makes it unlawful for an employer to fail or refuse to hire any individual because of that individual’s age. Does that mean an employer has to send ads to all ages?

The complaint includes various examples of the offending ads (including pictures). By way of example, T-Mobile posted an ad for people looking for a customer care career. According to the complaint, if you clicked on “why am I seeing this ad?” you got a message explaining that T-Mobile wants to reach people interested in customer service based on activity such as liking pages or clicking on ads. The explanation continues with other reasons, including that T-Mobile “wants to reach people ages 18 to 38 who live or were recently in the United States.” Plaintiffs claim that these major American employers violated federal, state, and local laws prohibiting age discrimination in employment advertising, recruiting, and hiring by posting these ads targeting younger individuals on Facebook. Plaintiffs propose both a plaintiff class (of older workers excluded from receiving these ads) and a defendant class (of employers and employment agencies that use Facebook’s ad platform to exclude older workers from receiving these ads).

Facebook is not named in the lawsuit and claims it is shielded from third-party liability by the Communications Decency Act.

Apparently, targeted employment ads are commonplace on Facebook, so we may see a rise of lawsuits similar to this one. Until this plays out, employers should take note. While age targeted advertising may be easy and cheap—and maybe determined to be legal—recognize that you may have to defend it in court.