The limitations of Facebook’s anti-discrimination policy and others like it

Under pressure from activists and lawmakers, Facebook moved recently to prohibit using its “Ethnic Affinities” targeting in conjunction with any advertising for housing, employment or credit opportunities. This update is aimed at curbing discrimination against minority groups which have historically been subjected to prejudice in these areas.

The move has been heralded by most as a significant step toward combating prejudice in advertising for the social media giant, and it publicly makes clear Facebook’s position on the matter. However, like many efforts in the past to prevent discrimination, this update only addresses the most immediate and obvious ways discrimination based on ethnicity can be perpetrated.

To understand why, it’s important to know how online ad targeting works, and how advertisers can subtly discriminate in ways that are sometimes even unintentional.

User attributes and the correlations that bind them

While ethnic affinity is only targetable through some advertising platforms, the vast majority of online advertising opportunities today, such as Facebook, paid search, YouTube and traditional display platforms, offer the ability to target based on geographic location.

Geographic location gives insight into realities and probabilities for a number of different attributes, such as average household income (HHI), proximity to brick-and-mortar locations and weather trends throughout the year. The likelihood that users can afford a luxury product or that a snow storm will require tire chains and shovels are, in turn, largely connected to the geographic location of users.

Geographic location also tells advertisers something about the likelihood that an individual is tied to a particular race or religion. Even without meaning to, advertisers might turn advertising off to areas which are primarily inhabited by minorities when taking geographic attributes such as HHI into account.

More directly, there is plenty of data available about the ethnic makeup of different geographies, and advertisers could certainly use this information in guiding which areas are targeted.

In the case of Facebook, eliminating the ability to use Ethnic Affinities in targeting users does nothing to curtail such targeting by other means, though it is worth noting that Facebook announced its intention to make clear to advertisers that it is their responsibility not to discriminate based on ethnic attributes. Perhaps such efforts will directly address the use of geographic targeting.

Aside from geographic targeting, other online advertising targeting options such age, gender and email targeting can also be used in ways that discriminate against a particular group.

Legal and ethical decisions for agencies and brands with regard to online advertising

Several pieces of legislation define US regulations on what types of discrimination are prohibited in the areas of housing, credit and employment opportunities. Here are a few:

• The Fair Housing Act prohibits discrimination based on race or color, national origin, religion, sex, familial status or handicap with regard to residential real estate-related transactions. These protections apply for all interactions included in renting, buying or securing financing for any housing.
• The Equal Credit Opportunity Act prevents creditors from discriminating based on race or color, national origin, religion, sex, marital status, age (provided the individual has the capacity to enter into a contract) or applicant’s receipt of assistance. This law prohibits creditors from discouraging individuals from applying for credit based on these factors, imposing different terms based on these factors, or in any other way taking these factors into consideration in determining the offers presented or not presented to an applicant.
• Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin.

While these and other pieces of national and state legislation directly address discrimination in housing, employment and credit opportunities, choosing to advertise to an individual or not based on such factors is for the most part exempt from such legislation as businesses aren’t required to present advertisements to anyone.

(Editor’s Note: the conclusions here are based on the author’s readings and analysis — consult your own attorney for advice.)

Take, for example, an upscale housing community putting up a billboard in a predominantly white area of town and deciding not to put one up in an area primarily inhabited by minorities. Such a decision might be made based on the fact that the latter might also be a lower-income area where inhabitants are less likely to be able to afford upscale housing; it could also be based on efforts by the housing community to keep minorities from trying to live there. But either way, there’s no requirement that billboards go up on both sides of town.

Similarly, in online advertising, there’s no requirement that all those who could apply for employment, credit or housing opportunities be shown advertisements, and marketers often target ads in these industries based on which users are most likely to successfully apply for such opportunities.

Some argue that the wording of anti-discrimination laws actually does prohibit using ethnic targeting in online ads for these industries. Take, for example, the Fair Housing Act’s wording that makes it illegal

to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.

Civil rights attorney John Relman argued that this could be used to mean that ethnic targeting in housing advertising is “massively illegal.” However, read literally, that provision of the Fair Housing Act just means that the advertisements themselves cannot explicitly “indicate any preference” — it does not require that advertisements be distributed in a way that doesn’t discriminate, which is much more difficult to prove and legislate.

Thus, any prohibitions on the types of targeting that can be used in advertising come from the platforms themselves, such as with Facebook’s recent move. Additionally, brands and agencies themselves must decide what types of targeting they are ethically comfortable using given the nature of each business.

Obviously, some types of products and entertainment are more applicable or relevant to individuals of a particular ethnicity, and deciding whether or not to use ethnic targeting in such circumstances should include a discussion on whether or not it unfairly discriminates against groups in a way that might have a meaningful impact on their ability to pursue opportunities.

When it comes to blurrier areas such as adjusting targeting based on geographic region, it’s a much more difficult conversation to have since, again, advertising might get turned off to particular groups unintentionally.

Pursuing performance goals without regard for such side effects is a popular line of thinking in digital marketing given the data-driven nature of optimizations. However, some marketers might find a moral obligation to advertise in an intentionally inclusive way, regardless of performance implications, if there are any, in much the same way that organizations might actively pursue diversity in their workplaces.

Stamping out discrimination is complicated

The United States has taken significant strides over the past several decades in preventing discrimination based on ethnicity, sexual orientation and gender. However, just because an employer can no longer promote an open position with specifications that candidates must be of a particular race or gender doesn’t mean that hiring processes don’t take those factors into account, intentionally or unintentionally.

In the case of Facebook’s update, there is a similar issue at play, in that while advertisers will not be able to call on ethnic affinities directly in housing, credit and employment marketing, targeting options such as geography can lead to bias anyway. For this reason, it is very difficult to completely eliminate discrimination in online advertising, on Facebook and across other major advertising platforms such as AdWords and Bing Ads.

Those who would seek to discriminate against ethnic groups in Facebook advertising for malicious reasons still have more covert ways of achieving just that even without ethnic affinities targeting available to them, in much the same way subtler modes of underlying discrimination still exist offline today. That said, it is always the right move to prevent discrimination in those ways which are possible, and to that end, Facebook has taken a step in the right direction.

Some opinions expressed in this article may be those of a guest author and not necessarily Marketing Land. Staff authors are listed here.

About The Author

Andy Taylor

Andy Taylor is a Senior Research Analyst at RKG, responsible for analyzing trends across the digital marketing spectrum for best practices and industry commentary. A primary contributor to the Merkle | RKG Blog, Dossier, and quarterly Digital Marketing Report, his 4+ years of experience have seen him master and provide valuable insights into topics that extend across paid search, comparison shopping engines, display advertising, SEO, and social media. Prior to coming to RKG, Andy worked as an event organizer for a political campaign and dabbled in freelance writing. A graduate of the University of Virginia with a degree in Economics, he likes to spend his free time watching documentaries and selling homemade ice cream sandwiches at farmer’s markets with his girlfriend.