Age Discrimination May Manifest in Subtle Ways

Most employers are aware of the fact that legally, they can’t specifically recruit workers under the age of 30 or fire a worker simply because he or she hit the 55-year mark. But usually, age discrimination comes in much more subtle ways. advertisementadvertisement

One such example is job advertisements that request applications from “recent graduates.” According to the Equal Employment Opportunity Commission, which has increasingly taken an aggressive stance on issues like this, here would be a situation where a seemingly neutral employment policy resulted in a disproportionate negative effect on older applicants.

It’s illegal to discriminate against someone on the basis of age, as well as gender, race, color, religion, national origin or disability.

Age discrimination is characterized as hiring or employment practices that unfairly or negatively impact persons over the age of 40. (The law does not recognize age discrimination against younger persons.)

One industry in which this has been especially common is technology. Last year, Fortune extensively outlined this issue in this article. The reporter noted that all major tech firms (including Facebook, Dropbox, Yahoo and Electronic Arts) all had recently listed recruitment ads requesting “new grad” resumes. In some of the advertisements, the companies went so far as to specify which graduating classes it was searching for.

When asked for an opinion on the legality of such an ad, lawyers with the Equal Employment Opportunity Commission flatly stated it was illegal.  The reason is because it deters older applicants from applying. Even though the discrimination may not be blatant, it’s worth noting recruitment efforts don’t need to actually mention age in order to constitute a violation of anti-discrimination law. Companies that use this kind of subtle language can still be found in violation if it can be shown older workers were discouraged from applying or were disproportionately denied a position.

In other situations, managers will talk about younger workers in terms of them being a “good cultural fit,” which is usually a roundabout way of saying “hip” and “young.”

Sometimes, of course, the attitudes are a bit more blatant. Consider statements made by Facebook Chief Executive Mark Zuckerberg in 2007. “Young people are just smarter,” he said at the age of 22. Another prominent venture capitalist in California was quoted as saying people over the age of 45 “basically die” when it comes to generating new ideas.

Although older workers bring invaluable experience and wisdom to a team, younger employees will work for lower salaries and reduced benefits – something many companies find attractive. They also may be willing to work longer hours because they don’t have the same kinds of family obligations.

In 2013, Facebook settled a case with state regulators after the company posted a job at for a legal advisor which indicated the ideal candidate had at least four years of experience – and preferably if the individual graduated in the Class of 2007 or 2008.

Of course, the company turned around and argued higher education institutions accept students of all ages, and therefore citing favor for a relatively recent graduating class wasn’t discriminatory. However, the company still ended up settling the case and agreed it would no longer indicate specific graduation dates in its advertisements for legal team positions. However, the company continues to use the term “new grad” in a number of recruitment materials for other posts.

Bottom line is companies don’t have to be brazen in their discrimination in order to cross the legal line.

Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.

Additional Resources:

Tech industry job ads: Older workers need not apply, June 19, 2014, By Verne Kopytoff, Fortune

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