Most employers know that including the phrase “people over 40 need not apply” in a job posting puts the company on the fast track to an employment discrimination claim.
But what about something less blatant?
For example, what about the new buzzword among employers, particularly in the media industries: “Digital Native?”
A “Digital Native” is someone who has grown up immersed in the technological world.
Many employers, especially in media industries, have begun using that term as a buzzword in job postings.
In fact, Fortune magazine recently did a simple search for “Digital Native” on a job posting website. It found the term used by “both established media giants and startups of all sizes.”
While the U.S. Equal Employment Opportunity Commission (“EEOC”) has not taken a position on the legality of “digital native,” past precedent suggests that once it does review the term, it will find that it violates the federal Age Discrimination in Employment Act (“ADEA”).
The EEOC’s compliance manual states that using terms like “young,” “college student,” or “recent college graduate” may deter individuals who are over 40 years old from applying for a job. As a result, these terms’ use would violate the ADEA.
“Digital Native” should raise the same concerns to the EEOC as “college student.”
It is particularly important for companies to pay attention to the terms used in job postings, because more and more discrimination claims are being filed with the EEOC.
Over the past 20 years, the number of claims has risen by thirty percent, with 20,588 age discrimination claims filed in 2014.
Employers can reduce the likelihood of being subject to an age discrimination claim by following a few simple guidelines in their job postings.
First, never state an age requirement unless the law only permits people above a certain age to work in the specific position.
Second, focus on the skill or quality that the company seeks, as opposed to a class of people who might possess that skill or quality. For example, instead of seeking a “Digital Native,” a company could seek an individual with demonstrable experience “with the use and operation” of the relevant technology.
Third, the managers who are responsible for posting job descriptions and overseeing the recruitment process should be trained and periodically refreshed on the company’s age discrimination policies.
Finally, the same criteria should be used to evaluate each candidate who applies and interviews for a particular position.
By following guidelines like these, employers can help protect their company from inadvertently running afoul of the age discrimination laws.
The attorneys at FOS can help you design and implement such policies or defend your company against allegations of age discrimination.
