Can the use of online targeted advertising in job adverts constitute age discrimination?

The paper intends to analyze how online targeted advertising can facilitate age discrimination in employment and how such practices by advertisers’ faire in light of the prohibition against age discrimination in the European Framework Directive and the caselaw from the CJEU. The Framework Directive includes selection criteria among the prohibited discriminatory measures by employers, but the scope of the Directive is still uncertain in terms of targeted advertising. In its Feryn judgment the CJEU found that public statements by an employer not willing to recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the Racial Equality Directive in that such statements are likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market. The paper addresses, whether targeted advertising can also constitute direct discrimination despite not being of similar rather malicious character as the public statements by the employer in the Feryn case.
The Danish statutory act implementing the Framework Directive in Denmark includes a provision explicitly prohibiting use of among others age as an selection criteria in job adverts. The paper will address, if the provisions possibly expands the scope of the Directive in casu to targeted advertising.