Tech Companies May Run Afoul of Employment Anti-Discrimination Laws – Is Your Company Compliant?

In 2007 billionaire Facebook founder, Mark Zuckerberg then 22 years old, made a series of comments that, depending on your age, prompted either  a vicious rebuttal or knowing agreement. Zuckerberg said, “Why are most chess masters under 30? I don’t know…Young people just have simpler lives. We may not own a car. We may not have family.” In short, perhaps due to their focus or lack of distractions Zuckerberg concluded and publicly announced that, “Young people are just smarter.” He encouraged tech companies to only hire young people with technical expertise.

Zuckerberg’s sentiments may simply be a reflection of the industry or they may have been a driving force behind its current state of employee recruitment and hiring. Fortune Online has highlighted the alleged preference by tech companies for younger workers over those who are in their 30s, middle-aged, or older. These preferences, as expressed in the employment advertisements, likely violate federal employment law.

Business people shaking hands, finishing up a meeting

Why do Tech Companies Favor Younger Workers?

The Fortune article brings attention to the fact that it is common for major Silicon Valley players to post job ads that seek a “new grad” or “recent college graduate”. Some companies even go so far as to enumerate the permissible years of graduation. While there are many suggested explanations for this preference the most convincing reasons include:

  • Money – Younger workers are willing to work for a lower salary. Because they are less likely to have a family, their benefits costs are less and they may be able to work longer hours.
  • The Cult of Youth — It is widely believed in Silicon Valley that younger individuals are more creative and innovative. Hiring managers believe that young and trendy 20-somethings can project that image to the public at large. People today want to be the next Facebook – not the next Microsoft or IBM.

However such requests for a “recent grad” are likely to run afoul of federal regulations that prohibit discrimination because of age in the workplace. According to statements made by the senior attorney advisor at the Equal Employment Opportunity Commission (EEOC), Raymond Peeler, the commission considers these types of ads to be illegal. The EEOC believes the use of these terms deters otherwise qualified older applicants from submitting an application.

What is considered a Violation of Anti-Discrimination Laws?

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on certain protected grounds for employment purposes. Protected grounds or classes include age, national origin, race and religious beliefs. If the plaintiff can prove that a disparate impact existed, even a facially neutral employment policy may be rendered illegal. A disparate impact is unintentional and occurs when an employment policy has adverse impacts on a protected class that is disproportionate to the impacts felt by non-protected individuals. A common defense for when a disparate impact is shown is that the policy is essential to the requirements of the job. However here it debatable whether a disparate impact analysis would control. Rather the issue may be one of disparate or discriminatory treatment, where the discrimination is intentional, because the age discrimination appears to be targeted and intended.

Senior Couple

In a recent matter, Facebook settled with California regulators over an ad for its legal team that stated, “Class of 2007 or 2008 preferred.” Facebook did not admit wrongdoing, but did agree to refrain from mentioning graduation dates in its employment advertisements. Electronic Arts (EA) also defended its practices of posting “new grad” employment advertisements by stating that those accepted into its program range from 21 to 35 years of age. EA later requested that this information be withheld by Fortune, apparently after realizing the lack of middle-aged employees actually supported the criticisms against the company. Yahoo was also contacted and apologized for inadvertently discouraging applicants.

All of this despite a warning on the EEOC’s website stating that, “a help-wanted ad that seeks ‘females’ or ‘recent college graduates’ may discourage men and people over 40 from applying and may violate the law.” One can only wonder as to if these advertisements were ever reviewed by legal counsel.

Large Silicon Valley corporations like Facebook, HP, Yahoo and Electronic Arts can certainly absorb the costs of their mistakes, including those for litigation and damages for employment discrimination. But, can your company afford these expenses?

Before posting to fill an opening, contact an experienced employment law attorney.   A few words could be the difference between a lawsuit or administrative action alleging discrimination against your company. Performing legal due diligence can  protect your company’s reputation while saving significant sums of money. For a private consultation with an experienced attorney call us at (800) 891-2657 or contact us online.

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