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Covert Discrimination: What You Need to Know About Coded Job Listings

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.

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.

digital natives

(Photo Credit: Cristobal Cobo Romani/Flickr)

“Digital Native” and “Recent Graduate” Can be Code for “Young”

Do You Know What You're Worth?

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.

Tell Us What You Think

Have you seen a job posting that uses code to cover up age discrimination? We want to hear from you! Leave a comment or join the discussion on Twitter.

Daniel Kalish
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8 Comments on "Covert Discrimination: What You Need to Know About Coded Job Listings"

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John Ryder
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Some companies don’t care what the law says, nor do they even try to hide discrimination. I had an interview for an engineering position where one of the HR “monitors” was actually quite ticked off because I showed up for a “new graduates” listing. He very directly said, “we’re really focused on candidates still at a ‘trainable level’ in their career” (As if there is a cutoff age where people can no longer learn anything). What he didn’t realize was that I had switched careers and didn’t graduate until I was 38. When I pointed out the graduation date on… Read more »
tig
Guest

I agree with Ven. The changing age demographics is indicative of a much needed paradigm shift in the enforcement of Age Protection Laws. People are living longer and therefore want to work longer in these multi-generational environments.

Ven
Guest

In an aging society such as ours it may be time to increase the strength of the age protection laws.

Jackie
Guest

What about if “are you over the age of 40” question comes up as optional in the EEO portion of your online application? I just encountered it and I have never seen that before.

Mary
Guest

What about postings that say “fast paced” office. Is that a kind of discriminating phrase? Being 62 I am not as fast as I used to be; however I am capable of doing work quicker than some that are younger. Many perform their job without much enthusiasm.

Jack
Guest

If one is over 50, then age discrimination for most positions is rampant. If you are over 60, forget it. You might as well walk into an interview with a chorus of lepers behind you, all chanting “Unclean! Unclean!”

jae
Guest

I would have thought from the title of the article that there would have been more. But, on a lighter note, having fingers and toes makes everyone a “digit”-al native. Besides, everyone knows analog is better.

april
Guest

I think being a “digital native” could be anyone who was around when the internet started. I’ve been using technology since the 80’s which I feel makes me a “native”. I was here before it and I have adapted and learned to implement new technologies in my life.

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