The “Dear Atty” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”
I am the Office Manager at an up-and-coming marketing firm. The owner likes to hire young people right out of college and has asked me to ensure that he gets the “right kind of people” by including the term “digital native” as one of the requirements in a job listing. While I understand his need to hire people who understand new technologies, isn’t this just a way to cover up age discrimination? I hate to rule out qualified people based on the generation in which they are born.
Generation Play Fair
Dear Play Fair,
Digital native? I have to admit, that is very clever. But, as your instincts warned you, it most likely will be seen as a subterfuge for age discrimination.
The Law: The Age Discrimination in Employment Act (ADEA) applies to individuals who are age 40 or older. The law protects these individuals from discrimination in a broad range of employment related decisions, such as hiring, firing, promotion, training, etc. Like all discrimination laws, the purpose of the ADEA is to ensure that employment related decisions are based on the individual’s skill and ability, as opposed to societal stereotypes.
When it comes to older employees, one such stereotype is that they are not as tech savvy as their younger counterparts. Through the years, some employers have tried to use certain code words or phrases to weed out older applicants based on this stereotype. In the past, in recruiting, employers have used phrases like, “seeking individuals with fresh new ideas” and encouraging only, “recent college grads” to apply. Now we can add “digital native” to the list of code phrases designed to weed out older applicants.
According to an article in Fortune magazine, the term “digital native” was coined by author Marc Prensky in a 2001 essay. In that essay, he defined a digital native as someone born during or after the start of the digital world, meaning they grew up immersed in technologies and are “native speakers” of the digital language of computers and the internet. Stated differently, and more bluntly, the phrase digital native is synonymous with younger individuals.
So, back to your original question. Would the use of the phrase “digital native” in your job listing create a problem under the ADEA? You bet it would. Applicants for the job who are over 40 and who are not selected could point to the digital native phrase as evidence of your company’s motive not to hire older employees. The phrase also could create legal risks regarding your current employees who are covered by the ADEA. If one of those employees were to be fired, denied a promotion, etc., they, too, could point to the phrase as evidence of your company’s animus based on age.
I think you need to have a little chat with your owner. You probably should remind him that the company should be hiring based on the applicant’s skill and ability, as opposed to their age (or other protected characteristic). That is what the law requires, but it also is as simple as playing fair.
If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years.