SOCIAL MEDIA JOB POSTINGS AND AGE DISCRIMINATION

Q:        Does using social media advertisements targeted to younger potential applicants raise age discrimination concerns?

A:        The Age Discrimination in Employment Act (“ADEA”) makes it illegal to discriminate against workers over the age of 40 in employment advertising, recruiting, hiring, and other employment opportunities.  The publication provision of the ADEA generally makes it unlawful to “print or publish” job notices or advertisements “indicating any preference, limitation, specification or discrimination, based on age.”  Age preferences for younger employees are only appropriate when age is demonstrated as a bona fide occupational qualification that is reasonably necessary for the normal operation of the business.

Age discrimination claims pursuant to the ADEA have been rising steadily in the past 10 years. The number of age discrimination complaints submitted to the U.S. Equal Employment Opportunity Commission totaled about 18,000 in 2017 — about 20% of all complaints filed with the federal agency.

At the same time, the manner and method by which employers are posting job advertisements has been changing and evolving. Not surprisingly, given the rise of social media usage, many employers are turning to sites like Facebook to recruit new hires.  However, using such sites to target specific demographics, such as younger applicants, may run afoul of the ADEA.

In December 2017, a group of some of the largest U.S. employers found themselves in federal court, facing tough questions about their social media hiring practices. A class action lawsuit was filed against the various employers, alleging that they used Facebook-provided targeting tools and algorithms to direct ads to younger potential applicants, thereby discriminating against older applicants in violation of the ADEA.  The individual plaintiffs in the case, who are all recently unemployed workers over the age of 40 who use the social media site, claim they have been denied the opportunity to view certain employment advertisements simply because of their age. Because they could not view the ads, consequently, they could not apply for the posted jobs.

Although we do not yet know the outcome of the pending litigation, it is likely similar claims will follow. So what can an employer do to mitigate the risks associated with posting jobs on social media sites?  Treat the online posting no differently than any other publication, such as a newspaper.  Avoid using language that may be deemed discriminatory (i.e. “young” or “new grad”).  Research the social media site’s advertising policies and procedures.  When completing the criteria for the posting, do not affirmatively limit how the advertisement will be shared among different age demographics who use the site.  Ensure that your company’s advertisements are accessible and open to potential applicants of all ages.

Leigh McMonigle

Single Ageist Comment May Be Insufficient to Sustain Age Discrimination Claim

Q.  If a supervisor makes a comment about an employee’s age, will the company be liable for age discrimination?

A.  While ageist comments are never appropriate in the workplace, an Illinois federal court recently ruled that a single age-related comment was insufficient for an employee to prevail on an age discrimination claim.

In Maglieri v. Costco Wholesale Corp., No. 16-cv-7033 (N.D. Ill. Mar. 14, 2018), the plaintiff employee alleged, among other claims, discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”). The 54-year old plaintiff worked in a Costco bakery and was directly supervised by a 57-year old manager. According to the plaintiff, the manager repeatedly yelled at her in a “nasty” and “intimidating” voice about working faster. But according to a co-worker, the manager was mean and abrasive to all subordinates and would sometimes yell to motivate employees. The co-worker also testified, however, that she once recalled the manager stating she was “kind of surprised that [Costco] didn’t hire someone younger” when plaintiff was hired. All of the plaintiff’s performance reviews reflected the manager’s concerns with plaintiff’s work speed.  However, plaintiff was not terminated or demoted and did not otherwise experience a change in her job duties.

The ADEA protects employees age 40 and above from age-based discrimination in the workplace. Employers may not discriminate against employees in any manner on the basis of age, and employers may not retaliate against employees who oppose any practices made unlawful by the ADEA. The plaintiff in this case alleged that she was the victim of both discrimination and retaliation.

In order to prove an age discrimination claim, plaintiff needed to show that her employer subjected her to an adverse employment action (such as termination, change in job duties, or a hostile work environment) because of her age. As the Court noted, “not everything that makes an employee unhappy is an actionable adverse action.” Although the manager’s yelling and alleged abrasiveness could present a Human Resources problem, merely being mean or raising one’s voice does not constitute a violation of the law.

The Court observed that plaintiff did not suffer termination or a change in job duties and also concluded that plaintiff was not the victim of an age-based hostile environment. According to the Court, it is not enough that an employee subjectively believes an employer’s conduct to be discriminatory. To prevail on a hostile environment claim, a plaintiff must show that the complained of behavior was both subjectively and objectively offensive. The evidence in this case showed that there was only one comment about age (the manager’s comment that she was surprised Costco did not hire someone younger). The Court found that “this sole age-based comment, which was not directed at [plaintiff] and did not contain any prejudiced views or derogatory slurs, is not enough to establish that [the manager] harassed [plaintiff] . . . because of [her] age.”

The Court concluded that the manager’s criticism about “slowness” and “lack of urgency,” were not a veiled way of harassing plaintiff about her age. While the ADEA prohibits employers from relying on age as a proxy for an employee’s work-related characteristics—such as productivity—the ADEA does not bar employers from focusing on the work-related characteristics themselves. According to the Court:  “Not completing work quickly enough is a legitimate workplace criticism.”

Employers should be aware that a single comment that is discriminatory on its face, such as a racial slur, could be sufficient to establish a hostile work environment.  In fact, courts have concluded that such singular comments are sufficient to bring a claim under various state and federal employment discrimination laws.

Although the employer in the above-referenced case managed to avoid liability, all employers would be well-served to conduct non-discrimination and anti-harassment training in the workplace that focuses not only on age-based discrimination and harassment but also on other forms of harassment based on sex, race, disability, and other protected traits. Pepper Hamilton’s Labor and Employment Practice Group can conduct anti-harassment training sessions for both your managers/supervisors and rank and file employees. Contact a Pepper Hamilton Labor and Employment attorney to discuss how we can tailor a training program to the needs of your workforce.

Lee Tankle