Can employers legally limit the ages of job prospects by recruiting only on college campuses? Can they cap the years of experience applicants are allowed to have? Can they set up social media recruitment campaigns that exclude older people? Or would taking active steps to minimize a job’s visibility to workers over 40 violate the Age Discrimination in Employment Act (ADEA)?
According to the EEOC, the ADEA does apply to job applicants and job advertisements. Specifically, these advertisements generally cannot specify an age limit unless that limit can be shown to be a bona fide occupational qualification reasonably necessary to the normal operation of the business — which the agency describes as a rare circumstance. However, the ability to target job advertisements exclusively to younger people is part of a new frontier.
“Civil rights don’t stop when you turn on your computer” argues the Communications Workers of America, which has brought a lawsuit against Facebook, T-Mobile and a number of other companies. The organization claims that these companies are parties to discrimination when they exclude older workers from being able to see certain job advertisements.
Facebook has defended exclusionary ad targeting as legal as long as the hiring company’s overall recruitment campaign reaches all demographic groups. At the same time, Facebook recently signed a binding agreement promising to stop letting advertisers to exclude job ad recipients based on race, nationality or sexual orientation.
That agreement did not promise to stop allowing exclusions based on gender or age, however.
The Communications Workers of America’s suit was brought on behalf of workers age 40 and over who have been excluded from seeing certain job ads due to exclusionary ad targeting. Other plaintiffs have filed lawsuits challenging college-only recruitment and limitations on experience.
Earlier this year, a panel of the 7th Circuit Court of Appeals ruled that the ADEA prohibits limitations on experience. The employer, however, has appealed to the full 7th Circuit.
In that case, a medical technology firm specified that applicants for a legal job could only have between three and seven years of experience. A lawyer with more than seven years of experience applied anyway and was told he was overqualified.
“I think that’s a code word, really, for age discrimination,” the lawyer said.
It’s too early to tell whether the lawsuits against these practices will be successful. What seems clear is that these techniques allow age discrimination by organizations that are motivated to engage in it.