Employers’ search for digital natives on the rise: good recruiting or age discrimination? 

Fortune published an interesting article this month about the rise of a curious trend: employers recruiting for “digital natives” and the potential age-biases implied by such hiring methods, which make them controversial.

Fortune reports that the “digital native” recruitment trend is especially prominent in the media, advertising, and tech industries, where companies are running such postings as the “ideal candidate must be a digital native who adapts quickly to new technologies” and is experienced in “existing and emerging digital platforms.”

It is not a stretch to acknowledge that we live in a technology-driven society and that digital know-how and expertise is an extremely desirable skillset in today’s job market.  Depending on the industry, it oftentimes is also a downright professional requirement.  So, you may ask, why any controversy over job ads or postings that seek out so-called “digital natives” who are simply tailored to meet a legitimate market demand?

From an employment attorney’s perspective, postings such as these could be construed as targeting a specific segment of job candidates –young ones—at the exclusion of older potential hires.

The term “digital native” originates from Author Marc Prensky, who defined it as someone born during or after the start of the digital world, meaning they grew up immersed in technologies and are “native speakers” of the digital language of computers and the Internet.  Standing in contrast to “digital natives” are “digital immigrants.”  “Digital immigrants learn — like all immigrants, some better than others — to adapt to their environment” but they always retain their “‘accent,’ that is their foot in the past.”  From this definition it is fairly apparent that “digital natives” refers, by and large, to those of younger generations born more recently.

The Age Discrimination in Employment Act (the “ADEA”) is a federal statute that prohibits qualifying employers from failing or refusing to hire, discharging, or otherwise discriminating against any individual with respect to the terms or conditions of employment because of his or her age.  The ADEA specifically protects those individuals who are age 40 and older.  With this context in mind, job postings searching for “digital natives” may invoke problems for employers under the ADEA.

However, age discrimination can be a difficult area of discrimination to prove because the Supreme Court has specified in the fairly recent case of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), that a plaintiff must prove that age is a “but for” cause in the adverse employment action at issue, which is a heightened standard of causation than applied to most other employment discrimination cases.  As such, if the only evidence relied upon in an age discrimination claim stems from the existence of “digital native” job posting, the plaintiff may have an uphill battle with the courts as the employer may argue that the term has broader-reaching implications, emphasizing someone who is technologically-competent or savvy, regardless of age.

Even so, an individual age 40 or older who is not considered for a potential job opening because the position seeks out a supposed “digital native” may have a viable claim if there is other circumstantial evidence of negative age-bias, such as that other individuals hired from the same types of postings were all substantially younger (such as in their 20s or 30s), the hiring manager is substantially younger, or that individuals 40 or over in the prior or similar position(s) have been terminated for no legitimate reason.

Before employers and recruiters jump on the band-wagon in search for “digital natives,” they should be wary that imposing this type of criterion on prospective candidates for hire carries loaded age-connotations that may subject them to unwanted legal exposure and liability.

For the full Fortune article, please visit http://fortune.com/2015/05/04/digital-native-employers-bias/