2 Words Companies Use to Hide Age Discrimination

Photo (cc) by Ant McNeill

Beware of job ads that request or require “digital natives.”

Some lawyers say the term is the latest trend in age discrimination, Fortune magazine reports today.

Used to describe people young enough to have grown up with the Internet, “digital native” has gained favor over terms like “new grad,” especially among media, advertising and tech companies.

Fortune’s search of the jobs website Indeed.com found “digital native” used in ads from advertising agency Wunderman, software solutions company StratusLIVE, car-sharing service Zipcar and Washington, D.C.-based CBS affiliate WUSA 9.

The Age Discrimination in Employment Act, a federal law, makes it illegal for companies with at least 20 employees to discriminate against employees or job applicants who are at least 40 years old on the basis of their “age with respect to any term, condition or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments and training,” according to the U.S. Equal Employment Opportunity Commission.

While an EEOC spokesperson tells Fortune no complaints have been filed yet over the term “digital native,” the magazine reports that age discrimination has been on the rise since the dawn of the digital era.

In 1997, 15,785 claims were filed. Last year, 20,588 were filed.

Attorney Ingrid Fredeen, a vice president specializing in ethics and legal compliance training at NAVEX Global, tells Fortune that the term “digital native” implies that “only young applicants need to apply” and makes her cringe:

This is a very risky area because we’re using the term that has connotations associated with it that are very age-based. It’s kind of a loaded term.

But while using the term “digital native” might easily leave companies open to possible discrimination complaints, proving age discrimination in court might be tough, Fortune reports:

In Gross v. FBL Financial Services, Jack Gross, a 54-year-old former executive at the time he filed, sued his employer, Iowa-based insurance firm FBL Financial, for age discrimination when he was demoted… Gross lost his case in the Supreme Court, which ruled that plaintiffs have to prove that age discrimination was the “motivating” factor. Before Gross’ case, plaintiffs had a valid claim if they were fired or demoted on suspicions of age discrimination.

Christy Holstege, a civil rights attorney in California, tells Fortune that while she thinks it’s unwise for employers to use the term “digital native” in employment ads, she can see them arguing in court that the term “carries unique meaning as to certain skills or qualifications” and is “necessary to the normal operation of the particular business.”

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