“Digital Natives” recruiting term can raise concerns of age discrimination

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Media Contact: Barbara Fornasiero, EAFocus Communications, 248.260.8466, barbara@eafocus.com

Detroit, Mich. – July 14, 2015 –The new use of the term “digital native” in job postings to emphasize the importance of technological and digital literacy job requirements is raising some red flags. In general, “digital native” refers to someone who grew up immersed in technology and was born during or after the start of the so-called digital world, but if employers are using the term to lure younger workers, they can run afoul of the Age Discrimination in Employment Act (ADEA), according to Patricia Nemeth, founder of Detroit-based management side labor and employment law firm Nemeth Law, P.C.

“A digital native is presumed to possess greater technological skills and be more comfortable with the evolving digital requirements of the workforce than a worker who had to adapt to technology,” Nemeth said. “The concern arises when the language is actually couched age discrimination violating ADEA, which protects individuals who are 40 years of age or older from employment discrimination based on age.”

The potential legal pitfalls with using “digital native” in an employment context is illustrated by a recent case involving a public school board administrator, Debra Marlow, who was a 20-year employee allegedly compelled to take early retirement after her position was first re-assigned and then later eliminated due to a reduction in force (RIF). Although Marlow was offered an alternative job during the RIF process, it would have resulted in a lower base salary and a significant cut in benefits.

Simultaneously, the Chesterfield County School Board was implementing a strategic plan focusing on improving the “21st Century skills” of all employees of the school system. Marlow argued that the school board’s strategic plan was biased against older workers, pointing to a presentation by the school superintendent explaining the importance of “21st Century Learning” to the staff. The presentation contained a slide which explained the distinction between “digital natives,” (born at a time when a particular technology exists), and “digital immigrants,” (born before a particular technology is invented). A subsequent slide in the presentation stated that brain function was higher while using technology in those who are “digital natives.” Based on these facts, the court denied the school board’s motion for summary judgment and the case proceeded to trial.

“While most employers understand it is illegal to fire someone because of age, they also need to understand that hiring decisions cannot be based on age either,” Nemeth said. “Solicitation for employment applications should not include indications of any preference, limitation, specification, or discrimination, based on age. For example, Facebook was subject to a lawsuit in 2013 for posting an employment ad stating a preference for applicants from the “Class of 2007 or 2008.”

The EEOC has yet to take a stand on whether the use of “digital native” violates the ADEA; however, the EEOC has previously indicated that it is illegal for an employer to publish a job advertisement which discourages someone from applying for a job because of their protected classification (such as age). Notably, the EEOC does take the position that a help-wanted ad seeking “recent college graduates” may illegally discourage someone over 40 from applying.

“While the purpose of using “digital native” in employment advertisements may be to specify the importance of technological and digital literacy, its use could result in liability,” Nemeth said. “With a variety of terms echoing the same message, including technological proficiency, employers should avoid any term that appears to discourage older individuals or individuals of a particular generation from applying.”

About Nemeth Law, P.C.
Nemeth Law specializes in arbitration, mediation, workplace investigations, employment litigation, traditional labor law and management consultation/training for private and public sector employers. It is the largest woman-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.

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