New Hire Orientation Blog
When Age Discrimination Rears Its Ugly Head
- November 26, 2019
- Posted by: Sherman Morrison
- Category: HR Best Practices
I’ve been writing about various forms of discrimination and bias in the workplace for years, but one that hasn’t received as much attention as it deserves is age discrimination. This is particularly important considering the financial struggles many “older” workers face in the continuing impacts of the Great Recession, which wiped out many a retirement plan. Unfortunately, proving age discrimination in hiring has only become increasingly difficult thanks to recent decisions by some federal appeals courts.
The Ugly Truth of Age Discrimination Revealed
Given historically low unemployment rates in a very tight labor market, many companies complain that filling open positions has become increasingly difficult. You might think this would mean they would be more open to hiring workers older than whatever ideal age they have in mind, but you’d be wrong.
Smart companies are using social media platforms such as Facebook and LinkedIn for their recruiting and hiring efforts. These platforms offer unprecedented opportunities to target ads to extremely precise demographic characteristics, including age. Dozens if not hundreds of the nation’s top-shelf employers (think Verizon, Amazon, UPS, Facebook, State Farm, Goldman Sachs, Target, etc.) are taking full advantage of this laser-precision targeting to restrict exposure to recruitment ads to particular age groups, which are inevitably younger people (Millennials). Middle-aged and older job seekers are effectively shut out of the process entirely because they will never even see the job posting.
Just because you can do something (like age-targeting for recruitment ads) doesn’t mean it’s okay to do it. Age discrimination is illegal, as laid out in the federal Age Discrimination in Employment Act of 1967. It forbids bias in both hiring and employment against people aged 40 or older. It seems obvious that this kind of ad targeting for hiring purposes is unlawful, plain and simple, both for the employers placing the ads and the social media platforms distributing them. The irony is that most any Equal Employment Opportunity (EEO) statement included on nearly all recruitment adds explicitly mentions age as a protected class, or implies it by even mentioning being an equal opportunity employer. But proving age discrimination in a court of law is another thing entirely.
The Difficulty of Age Discrimination Lawsuits
The Fair Housing Act specifically mentions publishers and requires them to assume liability for discriminatory ads. By contrast, the Age Discrimination in Employment Act doesn’t specifically mention publishers. It only assigns liability to “employers and employment agencies,” which gives social media platforms just enough room to wiggle their way out of accepting liability for ads that clearly engage in age discrimination through microtargeting.
Perhaps this will change against the backdrop of increasing scrutiny the largely unregulated tech giants are being subjected to as of late, but for now the courts have made it increasingly difficult to win age discrimination suits. These lawsuits contend that social media platforms such as Facebook and LinkedIn are essentially acting as employment agencies. In other cases, state or local laws have language that provides better inroads for lawsuits, such as California’s Fair Employment and Housing Act, which makes it illegal to “aid, abet, incite, compel or coerce the doing” of discriminatory acts included in the statute.
The social media platforms are pushing back through Section 230 of the federal Communications Decency Act, which shields internet companies from liability for third-party content. This is how Facebook is framing its argument that it is up to the employers and agencies placing the ads to not engage in discriminatory age targeting of recruitment ads. So far, this “not our problem” approach appears to be working. Meanwhile, recent decisions of the federal appeals courts in Chicago and Atlanta have effectively curtailed the reach of age discrimination protections, making it harder for plaintiffs to win litigation.
The message for employers struggling to fill positions is clear: Stop engaging in age discrimination and reap the benefits of the wisdom and experience older workers bring to the table.