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Davis Brown Employment and Labor Law Blog

Code Words and Causation - Avoiding an Age Discrimination Claim - May 30, 2018

Age discrimination is a significant issue nationally, including within the state of Iowa.  AARP surveys report that nearly two-thirds of workers age 55-64 say their age was a barrier to getting a job. In 2016, 318 age claims were filed with the Iowa Civil Rights Commission according to the ICRC 2016 aggregated statistics, putting age discrimination in the top five type of claims filed that year. Age issues frequently rely on both implicit and overt workplace issues, sometimes making them difficult to spot.

Data Analysis to Avoid Age Claims

Failing to assess your demographics in a reduction in force or placing limits on who receives training can open you up to age discrimination claims.  If every employee on the reduction in force list is over the age 60, you will need to evaluate the statistics of the entirety of your employee base and how such assessments were made in regard to this matter.  Capping out salary and similar items can also create issues unless those caps are tied to industry standards for certain types of jobs as well as a clear and specific job description.  The more hard data you have to show statistical fairness, the better off you will be in mitigating risk.

Code Words Lead to Age Claims

However, some of the largest issues with age claims are less obvious. - Assumptions made by managers and others regarding people based on their age can be highly damaging.  Various code words or phrases can show a particular animus regarding employees who are older.  Describing an employee as “not tech savvy,” “low energy,” “not a digital native,” “resistant to change,” “set in his ways,” or “grumpy,” can all be tied specifically to age unless you are also using those terms for your 22-year old new hires. 

Job Advertisements

Further, there are current cases that argue advertising for new employees who have 5-7 years of experience or a GPA of 3.5 or higher shows the intent to recruit relatively new grads.  This ultimately results in a disparate impact upon those with more experience within the workforce. The EEOC has indicated a strong preference that employers do not specify limitations on experience such as “5-7 years” but advertise with open-ended experience level such as “3 years minimum experience required.” 

Online advertising for job positions has also become a particularly complex and thorny issue for employers. Amazon, T-Mobile, employment agencies, and other companies have been sued for age discrimination specifically for targeting recruiting ads to specific ages on various social media platforms.

Social media companies have made it easy for companies to display ads to very specific types of people.  If you bought tires you will probably get more ads for tires or other car equipment. If you buy a lot of exercise equipment, anticipate seeing a lot of exercise ads.  Large employers, such as Amazon and T-Mobile can also specify that they want ads on social media targeted to specific demographics such as ages 18-40 or similar limitations.  A 2016 study by the Society for Human Resource Management (“SHRM”) found that currently, 66% of employers who recruit for new positions use social media such as Facebook.  Put together, the high number of employers using social media for recruitment and the ease of demographic targeting can create issues of age discrimination.

Company Culture Changes to Avoid Age Claims

Ways to address these issues include:

  • Open-ended advertising
  • Involve multiple people, with various viewpoints or ages in the hiring process
  • Train staff to interview
  • Work towards a culture that is aware of perception and code words

Hiring, retention, and equal opportunity are an evolving process and require planning, careful scrutiny, and the right vocabulary.

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