Why online jobs targeting could be discriminatory

Women could find themselves excluded from certain online job offers unless loopholes in the law which allow ‘discrimination by association’ are closed, according to a leading academic.

In her article, “Affinity Profiling and Discrimination by Association in Online Behavioural Advertising”, Professor Sandra Wachter says online behavioural advertising can affect a range of different areas, including jobs.

Behavioural advertising describes the placement of particular adverts in the places we visit online, based on assumptions of what we want to see. Through data collection based on our online behaviour, companies can increasingly target us not just with political information and products to buy, but also jobs.

She says: “While this means as consumers we are increasingly likely to be served adverts for things we actually need (or didn’t know we need), it also means advertisers are increasingly able to target or exclude certain groups from products and services, or impose variable pricing depending on who it thinks we are.”

This could lead to either direct or indirect discrimination. Professor Wachter says direct discrimination is fairly easy to define, for instance, you may have revealed your gender to an advertiser or they may have bought that information from a third party or they guessed what it was based on your purchase history.

Indirect discrimination is harder to spot. Professor Wachter gives the example of an advertiser who may withhold a job advert based on “seemingly neutral” reasons, for example, from Cosmopolitan readers. They may then claim that they are not excluding women per se. The proof will be based on whether women are actually excluded or whether that seemingly neutral practice could indirectly affect women adversely more than men.

However, Professor Wachter says the practice of ‘affinity profiling’ in online advertising – grouping people according to their inferred or correlated characteristics rather than known personal traits is becoming more and more common and is more difficult to detect.

Her article highlights the gaps of EU non-discrimination law in relation to affinity profiling, in terms of its areas of application, including employment, and the types of attributes and people it protects. Professor Wachter proposes that applying the concept of “discrimination by association” could help close this gap in legal protection against online behavioural advertising.

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