Sometimes employment discrimination is obvious; for example, a particularly bigoted manager or supervisor may use racial slurs or explicitly admit to discriminatory intent. Those cases are rare, however. More often than not it is much harder to prove employment discrimination because employers who want to discriminate have become quite good at hiding their intentions. One trick these employers use is using coded language in their job postings. They list job qualifications that are a pretext for eliminating certain job candidates. This is particularly common when it comes to age discrimination.
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“Digital Native” and “Recent Graduate” Can be Code for “Young”
Fortune recently reported on employers’ use of phrases like “digital native” and “recent graduate” in job postings to try to weed out older candidates. “New grads” or “recent graduate” have slowly fallen out of favor in employment listings, especially since Facebook settled a lawsuit in which the company was accused of age discrimination for posting a job listing with the phrase “Class of 2007 or 2008 preferred.”
Employers in the media, advertising, and technology industries have replaced this language with the phrase “digital native.” This term was coined by author Marc Prensky who defined digital native as someone born during or after the start of the digital world so that they grow up immersed in technology as native speakers of the digital language of computing and the internet.
According to the Equal Employment Opportunity Commission (EEOC) use of phrases like “college student” and “recent college graduate” violate the Age Discrimination in Employment Act (ADEA).
Part of the reason “digital native” is so problematic is that being a digital native does not necessarily mean one has any relevant skills, and not being one does not necessarily mean one lacks relevant skills. If these job postings listed specific technological skills that are necessary for doing the work of the job, that would be entirely different. Similarly, if they listed characteristics like “strong ability to adapt to ever evolving technologies,” that would be OK. But the phrase “digital native” automatically eliminates certain candidates from consideration based on their age rather than their qualifications, and that is a problem.
Prohibited Practices Under the ADEA
The ADEA makes it illegal for an employer to publish a job posting that shows a preference for job candidates under age 40. It is also illegal for companies to use job advertisements designed to discourage applicants over age 40 from applying for the job. Of course, the ADEA does not apply to all employers. For example, it only applies to employers who have 20 or more employees. However, various states have their own age discrimination laws that may provide you with stronger protections, depending on which state you are applying for work in.
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