Age discrimination threatens to be the most prevalent employment claim of the next decade. Baby Boomers are being forced out of the workplace in droves, while Millennials are reaching 40, the bottom rung of the protected class. Expect lawsuits from Millennials as they are squeezed between Baby Boomers reluctant to vacate their executive offices and Generation Zers who already feel more competent than their Millennial bosses.
Employers aren’t being wise in anticipating and preparing defenses to age discrimination claims. Facebook CEO Mark Zuckerberg expressed that attitude when he said to a Stanford University audience, “Young people are just smarter”—not the savviest public statement if you want to avoid an age discrimination lawsuit.
The fierce wave of suits has already begun. Hewlett-Packard (HP) has just been hit with a class action in which the plaintiffs claim its ongoing “Workforce Reduction Plan” is a thinly disguised act of age discrimination. They claim that HP’s “help wanted” ads use discriminatory terms like “recent college graduate” and “early career employees” as proxies for “young workers” and quote CEO Meg Whitman’s televised call for “a labor pyramid with lots of young people coming right out of . . . school and early in their careers.”
HP isn’t alone in its risk of age discrimination verdicts. Silicon Valley’s numbers on all protected classes are terrible. That’s not surprising since new tech puts such a high premium on hiring by word of mouth—in this case, young white males recruiting other young white males
Unlike other categories of discrimination, the age discrimination laws allow the defense of a BFOQ—a showing that age is a “bona fide occupational qualification.” So a TV producer seeking to cast an actress as Cinderella could declare youth as a BFOQ. (As Disney’s casting of Brandy, Whitney Houston, and Whoopi Goldberg in the 1997 remake of Cinderella shows, there’s no BFOQ defense to race claims or claims based on any other protected class.)
To establish a BFOQ, an employer must show both that an age-related qualification is “reasonably necessary” and that a criterion based on age isn’t simply “convenient” but is required. Silicon Valley seems to erroneously think that age is a BFOQ for its jobs, as evidenced by its recruiting on the basis of age.
A 20-something by any other name
Employers in the Deep South once culled out minority applicants by requiring a college degree for any menial task. For decades—and even today—the Equal Employment Opportunity Commission (EEOC) goes after that requirement as an indicia of race discrimination. Today’s proxy for youth is the call for “digital natives,” a term found in job postings by many companies, including Red Bull, Under Armour, and Hearst Magazines. The term refers to people who were born in the digital age (generally considered after 1980) and have spent tens of thousands of hours on games and devices—far more time than they’ve spent reading.
It may be true that digital skills are now more important than the ability to read. Engaging in deep thought and analysis was once a sought-after attribute; ignoring distractions used to be a good thing. Today, the ability to pivot out of pending work and immediately respond to an intrusive notification ping is a necessity—rapid response trumps focused concentration.
Good enough. But the law doesn’t allow employers to assume that youth and digital dexterity are necessary bedfellows. Workers and job applicants must be considered on an individualized basis, unless it’s “impossible or highly impractical” to do so. Harvard Berkman Center for Internet in Society notes, people “who were not ‘born digital’ can be just as connected, if not more so, than their younger counterparts.”
Antidiscrimination law is all about recognizing individual ability rather than stereotypical thinking. Whatever generalities you might harbor about women, young folks, white people, or Presbyterians, check them at the door. I used to cite Jack LaLanne, who spent his 70th birthday swimming across San Francisco Bay towing 70 rowboats with 70 passengers. He died in 2011 at the age of 97. I’ll find another example of an old person who defeats stereotypes as soon as I figure out how to work this Google thing.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. You may contact him at firstname.lastname@example.org.