Certain Terms May Act as Code for Age Discrimination, Other Unlawful Employment Practices in New Jersey

Age discrimination in the technology industry has received considerable media coverage in recent years, as several high-profile technology executives have made quite blatant statements of bias against older workers. Employment discrimination takes many forms, however, and frequently involves subtle actions, or patterns of action, rather than anything overtly and unmistakably discriminatory. The use of certain terms or phrases in job postings may serve as evidence of bias against certain protected groups. Claims against tech companies have alleged age discrimination based on employment advertisements stating preferences like “new grads.” Over the past year, the term “digital native” has emerged as the latest in a long line of possible indicators of age bias by technology companies and other employers around the country.

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., prohibits discrimination on the basis of age against workers who are at least 40 years old. Exceptions include a “bona fide occupational qualification” involving age, or “reasonable factors other than age.” 29 U.S.C. § 623(f)(1), 29 C.F.R. §§ 1625.6, 1625.7. The statute does not prevent an employer from favoring someone age 40 or older over someone younger than 40, based solely on age. It is only intended to protect older workers from discriminatory practices favoring younger workers. The number of age discrimination complaints received annually by the Equal Opportunity Commission (EEOC) has increased from 15,785 in 1997 to 20,144 in 2015

Statements indicating bias against older workers seem to be common in the tech industry, if the news media are any indication. In 2007, Facebook CEO Mark Zuckerberg, who was 22 years old at the time, stood on stage at a conference and declared that “young people are just smarter.” His company settled an age discrimination claim with state regulators six years later, after the company advertised a job opening with the caveat that it preferred applicants from the “Class of 2007 or 2008.” It is not entirely clear why so many in the tech industry seem to favor younger workers. Youth is by no means an indicator of superior aptitude with computer technology, but that is apparently the perception of many. This is where the term “digital native” comes into play.

The first known use of “digital native” was in a 2001 article by Marc Prensky entitled “Digital Natives, Digital Immigrants.” It defined a digital native as someone young enough to have grown up around computers, while a digital immigrant is someone who encountered computer technology later in life.

A Fortune article published last year reported dozens of job listings that included “digital native” in the job description or list of qualifications. The term is less overtly biased than words like “young,” “new graduate,” or “recent graduate,” but it carries a similar meaning. The use of the term is not enough, by itself, to establish an age discrimination claim, but it is important evidence. If a company uses that term and only hires younger applicants, that would suggest a strong ADEA claim.

At least one reported case has addressed the use of the term “digital native.” It involved an ADEA claim against an employer that directly quoted Prensky’s article in a PowerPoint presentation entitled “21st Century Learning,” which rather unambiguously stated that younger “digital natives” made better employees. Marlow v. Chesterfield Co. Sch. Bd., 749 F.Supp.2d 417, 426 (E.D. Va. 2010).

If you need to speak to an attorney about an age discrimination matter in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.

More Blog Posts:

Age Discrimination Alleged in New Jersey Lawsuits, The New Jersey Employment Law Firm Blog, July 16, 2015

Federal and State Law Prohibits Age Discrimination in Employment, Even in Traditionally “Young” Industries, The New Jersey Employment Law Firm Blog, February 13, 2015

Former Sales Executive Obtains $11.6 Million Verdict in Wrongful Termination Lawsuit, The New Jersey Employment Law Firm Blog, September 12, 2014


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