Coded Job Listings: The Latest Tricks in Age Discrimination

What do you do when you’re 40 or older, out of work and every job listing you find keeps requesting that you be “digitally native”? It’s a term that has made headlines recently, but what does it mean, and more importantly, how does it relate to age discrimination?

The term “digitally native” and others like it is increasingly used in job listings to attract tech savvy workers. It can be can be compared to the term “digital immigrant”, which indicates individuals who were not born in the digital era, but are learning to navigate the complex tech-centered world we live in.

Yet, use of the term in job listings is often seen as a sly way of weeding out an older set of qualified workers. An even bigger concern is whether this practice is legal.

Indeed, the influx of millennial job seekers and hiring managers into today’s job market has caused such coded job listings to become an issue. The “digital native” code has somewhat eclipsed the last bit of potentially biased job listing language calling for “new or recent grads” and listing requests for recent graduating classes such as “class of 2015.”

These job listings reflect the nation’s most recent trend toward favoring the skillsets of younger generations for jobs, citing their tech savvy, innovative contributions as key factors for moving a corporate purpose forward quickly and effectively. But does the lean toward such specifications in job listings constitute illegal age discrimination, veiling a prevalent bias against hiring older workers?

The Law on Age Discrimination

Currently, federal law prohibits age discrimination in employment with two major contributions. The first, Title VII of the 1964 Civil Rights Act prevents employers with 15 or more employees from excluding or otherwise discriminating against workers based on age in almost every employment process including hiring, firing, promotions and compensation.

In addition, the Age Discrimination in Employment Act (ADEA) prohibits discrimination against workers who are 40 years or older for employers with 20 or more employees. This includes forcing older workers to retire and retaliating against older workers who file age discrimination complaints or participate in age discrimination court proceedings.

It also includes mentioning or requiring that a certain age is preferred in job listings and advertisements. The EEOC, the federal agency responsible for enforcing both Title VII and the ADEA, has also stated that such practices are prohibited under age discrimination laws.

In fact, an EEOC notice to employers specifically states that language such as “recent college grad” that would discourage an applicant from applying for a job because of his or her age may violate current employment rights laws.

Beyond job listings, an employer is generally prohibited, by both Title VII and the ADEA, from discriminating against employees based on age in the hiring and application process. This means that even the latest trend of using coded or veiled language to capture the attention of smart millennials may be illegal, and is, at least, a risky practice for employers looking to steer clear of age discrimination lawsuits.

Age Discrimination in the Tech World and Beyond

The tech world, in particular, is no stranger to age discrimination claims. Despite the tough stance of employment rights law, the industry is a hotbed for ageism, a term often used to describe the pervasive age bias in the modern workforce.

Earlier this year, Google became the latest large corporation to experience the impact of an age discrimination claim when a 64-year-old tech worker filed a lawsuit claiming that the Internet giant passed him up for a job because of his age.

In fact, this is not the first time Google has faced legal action on the issue of age discrimination. In 2007, a Google executive filed suit against the company in a claim that states he’d been called an “old fuddy duddy” and was told that his ideas were “too old to matter.”

Facebook also has faced complaints against the way it handles job listings. In 2013, the company settled a suit against it based on a listing stating “class of 2007 or 2008 preferred”. Other well-known tech companies, too, have relied on such coded terms to capture the attention of young workers, while excluding the older set.

Reasons cited for the age imbalance in the tech industry and beyond are numerous. Aside from the obvious perception that young people are more prone to contribute all that’s fresh and innovative to a workplace environment, there is the common sentiment that younger workers demand smaller salaries and require fewer benefits than older workers and are less likely to cause issues at work due to family responsibilities.

Each of these factors make younger workers particularly attractive to employers who may themselves have supervisory and management teams consisting of mostly younger workers. In a survey cited in the most recent Google age discrimination case, the trend of a preference toward youth in the workforce is clear. The survey showed the average age for top U.S. companies ranged from just 26 to 39 years old.

According to the Bureau of Labor Statistics, the average age of most American workers is 42.3 years of age.

Steering Clear of Coded Language and Age Discrimination

The problem with coded language is that, just like outright discriminatory language, which makes exclusion of certain groups clear, it is illegal under current federal, as well as most state, age discrimination law. Although few cases specifically citing coded language have reached the intake counters of the EEOC or the courts, the possibility that an employer could get in to costly trouble by using it is high.

From an employee’s perspective, coded language is yet another factor to consider during the application and hiring process. Job seekers over 40 should be aware of the modern-day trends toward ageism as well as the job listing terminology used to convey them. They should also be prepared to contact the EEOC or a qualified employment rights attorney should they feel their rights are being violated.