Ohio Age Discrimination Attorney Best Answer: Can an employer take age into account when making a hiring decision? Is a job listing seeking “recent graduates” discriminatory? Can I sue an employer for age discrimination? How do I prove an age discrimination claim?
As our employment discrimination attorneys have previously blogged about, the Age Discrimination in Employment Act (“ADEA”), at the federal level, as well as Ohio employment law statutes (R.C. § 4112.02(N), R.C. § 4112.05, R.C. § 4112.14) make it unlawful for an employer to discriminate against individuals based on age (being over 40 years old). These laws apply at all phases of the employment process, from hiring to firing. (see Age Discrimination: A Good Verdict.; Age Discrimination: Clarifying A Misconception About Damages; How Do I Sue My Employer For Age Discrimination At Work? I Need A Lawyer! Age Discrimination Video; I Was Fired Because I’m Turning 60. I Need The Best Lawyer!)
While age discrimination during the hiring process is just as illegal as age discrimination at other stages of the employment process, failure to hire based on age discrimination is difficult to prove, especially without the help of experienced employment discrimination lawyers. (see Can An Employer Post A Job With Age Limits? I Need A Lawyer!; Can I Sue If I Was Turned Down For A Job Because Of Discrimination? Best Lawyer Reply!). One reason failure to hire claims based on age, or any other protected class, are difficult is that an employer can easily find distinctions among candidates to justify a given hiring decision. Who’s to say that an employer chose one candidate over another because of a discriminatory reason? Sure, sometimes a given candidate is clearly more qualified than the field and, yet, a lesser qualified candidate is given the position. When this happens, an aggrieved candidate can point to disparate treatment. That is, despite being as qualified, or more qualified, than the chosen candidate, an older candidate was not chosen for the job.
Another way to show that age was a factor in a hiring decision, and thus unlawful employment discrimination, is to show what is called disparate impact. For example, a requirement that candidates have 20/20 vision or be able to do 30 pull-ups in a minute clearly excludes more fifty-something candidates than twenty-something candidates. Assuming those qualifications are stated for a job that doesn’t actually require perfect vision or great physical stamina, an aggrieved candidate has a fighting chance of proving age discrimination.
Most employers won’t come right out and say, “We think you’re too old for the job.” Such a statement would be direct evidence of age discrimination and most employers aren’t stupid enough do this (although there are many that are). Direct evidence of age discrimination in the hiring process is rare…but that is not to say that it never happens. A few years back, Facebook settled an age discrimination case after it came out that, in a job posting for a legal position with the company, it was seeking attorneys who graduated law school in 2007 or 2008. Such a preference clearly excludes older attorneys. It probably didn’t help Facebook’s cause that its founder, Mark Zuckerberg, had previously made the public statement that, “Young people are just smarter.”
Zuckerberg is, almost certainly, bright enough himself that he doesn’t truly believe that younger workers are inherently smarter than older workers. Many employers, though, particularly in the tech industry, do have a pronounced preference for younger employees. In the past, many of these employers would list a job opening and state a preference for “recent graduates.” Because “recent graduate” evinces a preference for younger candidates, many employers have stopped using such language in job listings.
Recently, though, a new term has emerged in job listings that has the same effect as “recent graduate.” Prospective employers, particularly in the media, technology, and advertising industries, have started using the term “digital native” as a preferred job qualification.
Digital native is a term first coined by Marc Prensky in a 2001 article. Prensky’s article asserts that kids raised in a digital, media-saturated environment, need a media-rich learning environment in order to hold their attention. The term, originally used to illustrate the differences in learning styles between pre and post-digital aged individuals, is now commonly used as shorthand to describe people born after 1980, when social-digital technologies, like Usenet and bulletin board systems, began to emerge. The rest of the population, people born before 1980, is composed of digital immigrants.
While the Equal Employment Opportunity Commission (“EEOC”)has not taken a stance on job postings that use the term digital native, it has previously stated that terms like “college student” and “recent graduate” violate the ADEA. (See File With The EEOC Or Get A Lawyer?; Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First). It seems clear that the term digital native is discriminatory and that any job posting seeking digital natives is unlawful.
If you are an employee over the age of 40 years old and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss did …” or what happened on “my job.”
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