On Sept. 18, 2018, the American Civil Liberties Union (ACLU) filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) against Facebook with respect to Facebook’s employment advertising practices, the result of which could have major implications in the way companies use big data. This case illuminates a legal issue that is rapidly evolving into an area of exposure for the way in which companies who utilize big data technology target their intended audience. Companies that wish to continue their big data practices must ensure that they carefully evaluate their use of these technological tools to avoid lawsuits and regulatory ire for potentially discriminatory conduct.

What Is Big Data?

We begin with the fundamental question: What is big data? Big data has been described as “extensive datasets—primarily in the characteristics of volume, velocity, and/or variability—that require a scalable architecture for efficient storage, manipulation, and analysis.” What Is Big Data?, University of Wisconsin, Data Science (2018). In the consumer context, an online retailer might use big data analytics to mine your online purchase history to help predict what your next purchase will be and provide advertisements for products the retailer predicts you might buy. In the employment context, companies might use big data algorithms to find job applicants with a better chance of generating a positive job performance. In the ACLU’s case most recent case against Facebook, the issue centers on the alleged use of big data to target specific consumer groups for employment opportunities.

The EEOC Complaint

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