practice

Doi: 10.1145/2447976.2447990

Article development led by queue.acm.org

BY LataNYa SWeeNe Y
Discrimination
in online
ad Delivery

Employers frequently ask whether applicants have ever been arrested or charged with a crime, but if an employer disqualifies a job applicant based solely upon information indicating an arrest record, the company may face legal consequences. The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing Title VII of the Civil Rights Act of 1964, a law that applies to most employers, prohibiting employment discrimination based on race, color, religion, sex, or national origin, and extended to those having criminal records. 5, 11 Title VII does not prohibit employers from obtaining criminal background information, but a blanket policy of excluding applicants based solely upon information indicating an arrest record can result in a charge of discrimination.

To make a determination, the EEOC uses an adverse impact test that measures whether certain practices, intentional or not, have a disproportionate effect on a group of people whose defining characteristics are covered by Title VII. To decide, you calculate the percentage of people affected in each group and then divide the smaller value by the larger to get the ratio and compare the result to 80. If the ratio is less than 80, then the EEOC considers the effect disproportionate and may hold the employer responsible for discrimination. 6

What about online ads suggesting someone with your name has an arrest record? Title VII only applies if you have an arrest record and can prove the employer inappropriately used the ads.

Are the ads commercial free speech—a constitutional right to display the ad associated with your name? The First Amendment of the U.S. Constitution protects advertising, but the U.S. Supreme Court set out a test for assessing restrictions on commercial speech, which begins by determining whether the speech is misleading. 3 Are online ads suggesting the existence of an arrest record misleading if no one by that name has an arrest record?

IllustratIon by alex WIllIamson

Google ads, black names and white names,
racial discrimination, and click advertising.

do online ads suggestive of arrest records appear more often with searches of black-sounding names than white-sounding names? What is a black-sounding name or white-sounding name, anyway? How do you design technology to reason about societal consequences like structural racism? Let’s take a scientific dive into online ad delivery to find answers.

“Have you ever been arrested?” Imagine this question appearing whenever someone enters your name in a search engine. Perhaps you are in competition for an award or a new job, or maybe you are in a position of trust, such as a professor or a volunteer. Perhaps you are dating or engaged in any one of hundreds of circumstances for which someone wants to learn more about you online. Appearing alongside your accomplishments is an advertisement implying you may have a criminal record, whether you actually have one or not. Worse, the ads may not appear for your competitors.