The U.S. Equal Employment Opportunity Commission (EEOC) has expressed that coded references to age, such as “college student,” “recent college graduate” or “young blood,” can violate the Age Discrimination in Employment Act, a federal law that prohibits discrimination on the basis of age against employees and job applicants age 40 and over. NYC and NYS human rights laws are even more expansive than the federal law and are not limited to employees under age 40.
It was reported that, in 2007, Facebook founder Mark Zuckerberg said: “Young people are just smarter.” (This statement is actually belied by the fact that baby boomers are the fastest-growing group of entrepreneurs.) But employers who harbor stereotypes and biases against older workers are often more subtle and creative in their statements about older employees. “High energy level,” “high-potential,” “fresh,” or “dynamic,” for example, are often euphemisms used by employers for “young.”
AARP reports that, according to a survey that it conducted, almost two-thirds of workers between the ages of fifty-five and sixty-four believe that their age negatively affected their ability to get a job. According to AARP, phrases such as “recent college graduate,” “super fun work environment,” and “digital native” are designed to discourage applications from older candidates. Advertisements for job openings seeking candidates with a certain, limited number of years of experience or high GPAs appear similarly geared to recent college graduates. A job description that specifies a minimum of years of experience, rather than setting a cut off for years of experience, avoids this issue. And employers who have targeted certain age demographics with their job recruiting ads on social media have faced lawsuits challenging the practice as age discrimination.
Other euphemisms that can result in claims of age discrimination include words relating to familiarity with technology, such as “tech-savvy.” Conversely, statements about an older employee’s lack of technological skills, slowness or inability to adapt, be flexible, or be open to change, i.e., set in his or her ways, could be evidence of animus or bias toward older workers. Similarly, relying on hiring criteria of “cultural fit” could be used by employers to screen out older employees.
Ultimately, at the heart of every age discrimination case, is an employer’s less favorable treatment of a qualified applicant or employee because of that person’s age. An employer’s use of “code words” to attempt to perpetuate age discrimination while claiming a non-discriminatory purpose does not provide an absolute shield against age discrimination claims. Attorneys representing employees in such circumstances, for example, can show the court that the “code words” are merely pretexts for discrimination.
For more information or to consult with an experienced NYC employment discrimination attorney, please contact Colleen M. Meenan at Meenan & Associates, LLC.