Five years later: Discriminatory Job Ads

Private employers are criticized for doing what the federal government does – engaging in blatant age discrimination in hiring.

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There is renewed focus upon a discriminatory practice that has been around for many years –  job advertisements that use blatant code words to attract younger applicants and deter older applicants.

Fortune Magazine recently noted that employers in the media, advertising and tech industries, have begun advertising for “digital natives,” which is code for workers aged 30 or below.

This may be new to Fortune but I filed a complaint in September 2010 with the EEOC complaining about this very issue. I provided documentation showing that the major internet job search site for attorneys, ALM’s Lawjobs.com, featured literally hundreds of advertisements for attorney jobs containing blatant age limitations. I provided more than a dozen examples of discriminatory ads taken from the site.  Some of the ads sought attorneys who graduated during a defined and recent period of time, such as from 2004 to 2007.  Other ads sought attorneys with limited experience, such as three-to-five years of experience. Given that the average age of law school graduates is about 25 years of age, I felt these ads violated the Age Discrimination in Employment Act of 1967.  Indeed, the ads fundamentally were no different than the notorious “whites only” job ads of the Jim Crow era.

I took the step of filing an EEOC complaint because I felt attorneys should be both knowledgeable about age discrimination and serve as officers of the court who pledge to follow the law. Moreover, judges are plucked from the ranks of attorneys and it’s hard enough to win an age discrimination case. That attorneys and the search firms they hire to place their job advertisements felt no compunction about engaging in blatant age discrimination seemed to me to be indicative of a much wider problem.

I was disappointed, though not surprised, when the EEOC declined to pursue my complaint. 

The EEOC received the highest number of age discrimination complaints (23,465) in its history in  2011.  The agency’s response was less than energetic – the EEOC  filed 26 lawsuits with age discrimination claims in 2011.  That number steadily declined to a record low of seven lawsuit s in 2013, a year in which the EEOC received 21,296 age discrimination complaints.

Fortune quotes Joseph Olivares, a spokesperson for the EEOC, as stating “the agency has not taken a position on whether using the term “digital natives” in an ad is discriminatory. But that’s only because job seekers need to file a complaint first before the EEOC can investigate. So far, none have been filed.”  The reality is that the EEOC has been on notice since at least 2010 that employers are using  language in job applications that intentionally discriminates against older workers.

But one must sympathize with the EEOC.  Age discrimination became part of the federal government’s hiring strategy when President Barack Obama on December 27, 2010 signed an executive order establishing the Pathways “Recent Graduates” Program, which allows federal agencies to bypass older workers and hire recent graduates. Can or should the EEOC penalize private employers for doing  the exact same thing?. Also, the EEOC is a small agency with a massive backlog that struggles in the face of hostile federal courts and a phalanx of elected officials who unambiguously represent the U.S. Chamber of Commerce in both houses of the U.S. Congress.

As a side note, one of the advertisements  that was cited by Fortune was placed by the media giant Gannett’s CBS TV affiliate in Washington D.C. If you wonder why you never read about age discrimination, consider that the media may be engaging in it.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I note that older workers face epidemic age discrimination in hiring and often are forced to spend down their savings, take low-wage jobs with no benefits and retire as soon as possible, suffering a future decrease of at least 25 percent in Social Security Benefits for the rest of their lives.

Author: pgb

Attorney at Law, author and blogger.

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