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May 13 — Employers can avoid charges of age discrimination in hiring by focusing on applicants' abilities rather than generational stereotypes, employment attorneys told Bloomberg BNA.
“It's not unreasonable for employers to want to attract a combination of younger and more experienced workers. But employers can get themselves into hot water when they assume that they need younger workers to fill certain roles” Tom Spiggle of employee-side Spiggle Law Firm in Arlington, Va., said.
“Social media is relatively new, and there is a view that millennials know more about the latest and greatest in new technology,” he said.
“We see a fair amount of age discrimination cases in general, and a lot of times they do have a technological aspect,” Spiggle told Bloomberg BNA. But the claims tend to focus on employees being phased out of positions rather than on hiring, he said.
“There are very few litigated cases about hiring decisions,” Richard Kass, a management-side attorney at Bond, Schoeneck & King PLLC in New York City told Bloomberg BNA. Age discrimination claims usually come up after someone has already been working somewhere because “it’s difficult for any applicant to prove he would have been hired but for the discrimination,” he said.
“But my antenna always goes up when I see job ads that use terms like ‘new blood' or ‘digital native,' ” Spiggle said.
“Digital native” is generally used to describe people who grew up using digital technology.
“The age discrimination act at the federal level kicks in at age 40,” said Dan Kohrman, senior attorney at the AARP Foundation Litigation in Washington. “And if you think about how many people in their 40s or 50s have been working in the technology field for years, the idea that ‘young' equals ‘tech savvy' is kind of outdated itself.”
Passed in 1967, the Age Discrimination in Employment Act prohibits employers with 20 or more employees from discriminating against workers age 40 and older.
The act has broad coverage over decisions on hiring, firing, promotion, wages, layoffs and benefits.
It is important to note that the ADEA doesn't protect workers who are under age 40. Moreover, the U.S. Supreme Court has ruled that the act doesn't prevent an employer from favoring older workers over younger ones, even when the younger workers are also over 40 (General Dynamics Land Sys. Inc. v. Cline, 540 U.S. 581, 93 FEP Cases 257 (2004); (36 DLR AA-1, 2/25/04).
Even if employers aren’t intending to discriminate, they can still subject themselves to a lawsuit under the ADEA, Spiggle said.
“Employers have to be very specific about what skills are needed for any particular position and make sure there is no disparate impact on older workers,” he said.
“Particularly in sales positions, employees tend to get tracked out at age 55,” Spiggle said.
“If the company starts using Salesforce or another complicated customer relationship management system, it can be a steep learning curve for anyone who is training on these new systems,” he said. “Someone who isn’t used to technology may be pushed out the door.”
Employers should make sure people who are already in the job get the training they need to learn new technology, Spiggle said.
It isn’t illegal to fire someone who can’t use the required technology, he added. Nor is it illegal for a company to advertise that it needs someone who is comfortable with technology.
“If a company wants someone proficient in social media, like Facebook advertising, for example, it can advertise and hire for that,” Spiggle said. “If it happens that everyone with that skill set is under 30, that’s not illegal.”
Hiring practices that focus on attracting and retaining younger workers have frequently come under scrutiny.
A recent class and collective action complaint filed against PricewaterhouseCoopers asserts that the company favors millennials for certain jobs (Rabin v. PricewaterhouseCoopers LLP, N.D. Cal., No. 3:16-cv-02276, complaint filed 4/27/16).
In that case, a 53-year-old certified public accountant whose application was rejected said the firm uses recruiting tools that screen out older applicants (81 DLR A-1, 4/27/16).
PwC typically doesn't post entry-level accountant positions on its website, as it does with other positions, and instead relies almost exclusively on a campus recruitment tool, according to the complaint.
“PwC prides itself on attracting and retaining young workers” and “has conducted extensive research on maintaining a workforce of millennials,” the complaint said.
A PwC spokesperson denied the claim in an April 27 statement. “PwC's hiring practices offer equal opportunity to all applicants, and the firm devotes enormous resources to recruiting a diverse workforce,” the statement said.
“The problem in the PricewaterhouseCoopers case is that the company only recruited on campuses for certain jobs,” Dara S. Smith, another attorney with the AARP Foundation Litigation, told Bloomberg BNA. “In fact, they called their recruiting tool campus-track,” she said. The AARP Foundation Litigation represents the proposed class in that case.
“Campus recruiting is great, but employers need to use more outlets,” Smith said. “It’s about being inclusive.”
It would be cost prohibitive for an employer to advertise on every jobs website or in every newspaper. But an employer should “be able to explain the legitimate business reason for making the choice that it did,” Kass said.
“It works the other way as well,” Kass said. It may be fine for an employer to target media that have audiences that skew toward younger or older readers if it’s “carrying through its affirmative action plan in good faith,” he said.
Whether they represent workers or management, attorneys suggest that employers focus on applicants' ability to perform the job and not their personal characteristics.
“Employers should think about what the person would be doing in the job,” Smith said. “What cutting-edge technology will the person be working with?”
Kass compared it to a position where proficiency in a particular language is a requirement of the job. Mastery can be obtained irrespective of whether someone is a native speaker or learns the language later in life, he said. This is why employers should concentrate on whether applicants can perform the job's duties and not on their personal characteristics, Kass said.
Smith agreed. “A job posting that focuses on these aspects would attract the right people regardless of age,” she said.
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